LIBRARY NEW ACCESSION Sidiject _Vo. On page Cornell University Library KF 1250.Z9E74 A summary of torts / 3 1924 019 310 097 (fnruFU ICam ^rlynnl ICibrarg Cornell University Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924019310097 A SUMMARY OF TORTS FRANK A. ERWIN Professor of Law in New York University 1899 "B 7^350 COPYRIGHT, 1S99, BY FRANK A. ERWIN CONTENTSr INTRODUCTION. Injuries — in general ..... Tort defined ...... Tort, contract and crime distinguished Tort not merged in felony .... Some general principles: Vbi jus, ibi remedium .... Injuria sine damno ..... Damnum sine injuria .... Sic utere tuo ut alienum non Icedas Causa proxima non remota specfatur . Actio personalis moritur cum persona Statutory modifications in England Same— in New York .... " Pecuniary injuries " Funeral expenses .... Recovery not limited to minority . Action abates with death of wrong-doer Three main heads of duty .... Liability in tort— in general .... Infants ...... Lunatics ...... Married women ..... Husband or wife vs. the other for personal injuries Corporations — in general Charitable corporations State or general government Municipal corporations .... Principal and agent .... Master and servant ..... Master's liability to third persons . Master as common carrier Provocation .... Relation must be shown to exist . Reasons for master's liability . Independent contractor 1 1 2 4 6 6 6 7 8 10 10 11 15 17 17 18 19 19 20 21 22 22 25 28 80 31 33 84 34 34 35 36 37 38 iv CONTENTS. Master's duty to servant Modificatioa of respondeat superior Reasons for same Who are fellow-servants Hank or grade immaterial Must be under control of one master Concurrent negligence Vice-principals .... ASSAULT AND BATTERY. Security of person Assault defined Intent Essential elements 'threats Assault included in battery Battery defined Contact Use of force not unlawful Consent Defense of person Defense of property FALSE IMPRISONMENT, Freedom of person .... False imprisonment defined Essential elements Justification .... Arrests with warrant Void and irregular process Erroneous process Arrests without warrant Malice and want of probable cause 40 40 42 43 43 43 44 45 46 46 47 47 47 47 47 48 49 i50 52 53 53 54 54 54 55 55 56 57 INJURIES IN FAMILY RELATIONS. Fiction of service ....... 58 Negligent injury to child, not causing death ... 58 Same, causing death ...... 59 Seduction ....... 62 Theory of the action and measure of damages 63 Right to command services .... 64 Adult daughter ...... 64 Seduction under promise of marriage .... 65 Measure of damages for breach of marriage contract 65 Criminal conversation .,,,,, 67 CONJENTS. LIBEL AND SLANDER. Right to reputation ..... Violation of the right .... Slander and libel defined Statutory definition of libel Essential elements in defamation The law distinguishes between libel and slander Reputation in criminal and in civil actions Cases actionable, and not actionable, per se Some instances of special damage Special damage in cases actionable per se Imputation of unchastity actionable per se Mere repetition does not constitute special damage Implied malice, or " malice in law " Language of the publication Intent of speaker ..... Innuendo . < . . . Averment, colloquium and innuendo Comment and criticism .... Liberty of the press ..... Truth as a defense .... Justification must be as broad as the charge Mitigating circumstances Privilege as a defense .... Qualified privilege. Malice material Moral duty to communicate Reports of judicial and legislative proceedings Express malice, or " malice in fact " Privilege a question of law; malice, of fact . Absolute privilege. Malice immaterial 69 69 69 69 69 70 70 71 71 72 74 74 75 75 76 76 77 77 78 78 80 80 80 81 82 83 84 85 85 DECEIT. Nature of wrong ..... Deceit defined ..... A common-law action .... Complication with contract Essential elements ..... False representations of material facts Silence and artifice .... Defendant's knowledge of falsity. Intention Plaintiff relied and acted upon representations to his 86 86 86 86 87 88 89 90 92 MALICIOUS PROSECUTION. Essential elements Termination 94 94 Vi CONTENTS. Nolleprosegui .... 95 Appeal ...... 96 Want of probable cause .... 96 Mere belief ...... 96 Conviction ..... 97 Advice of counsel ..... 97 Malice ...... 98 Malice may be inferred .... 98 Malice and want of probable cause must concur 99 Probable cause a question of law. Malice,, of fact . 99 Abuse of process ...... . 100 Termination not a condition precedent . 100 Distinguished from malicious prosecution . 101 Malicious prosecution in civil actions 102 Distinction between false imprisonment and malicious prosecution 105 TRESPASS. a»ty regarding property • . . 105 Common-law rights and remedies possessory 106 Trespass defined . . 106 Trespass upon land ... 107 Constructive possession . 107 The enclosure ..... 108 Justifiable entry . 108 Not an action to try title ..... 110 Trespass ab initio ..... . Ill W^ste ...... 111 Trespass to goods .... . 112 CONVERSION. Defined ........ 112 Intention ....... . 113 Acts not implying assertion of title 113 Exercise of dominion ..... . 114 For whom exercised, immaterial . 115 Asportation ..... . 115 Distinguished from trespass . . . , 115 Ancient modes of redress for loss of goods 116 Replevin ....... 116 Replevin distinguished from trespass . 117 Replevin regulated by statute 117 Detinue ..... . 118 Trover and conversion ..... 118 Requisites to maintain conversion . 119 Possession and property right .... 119 Demand and refusal . ■ • • . 120 CONTENTS. vii Remedies ....... 121 Measure of damages ..... 121 NUISANCE. Defined ....... . 121 Distinguished from trespass .... 122 "What constitutes a nuisance .... . 122 Injury to property and physical discomfort 123 Standard for bodily discomfort . 124 Classification ...... 125 Public nuisance ..... . 126 Private nuisance ..... 126 Public nuisance may be private nuisance . 127 Continuing nuisance ..... 128 Parties ........ . 129 Remedies ....... 130 . 130 Theory of abatement .... 130 RflFect of abatement upon action . 131 Abatement a dangerous remedy 132 Injunction ...... . 133 Damages ....... 135 NEGLIGENCE. Defined ....... . 135 Essential elements . . . . >. . 136 . Duty owing ..... . 136 Duty and mere contract obligation 136 Purpose or intfent . . . 137 Care and caution ... 139 Standard of duty .... . 140 Rule as to carriers of passengers 141 Facts and law .... . 145 Presumption of negligenfce .... 147 Contributory negligence ..... . 148 Reason for the rule ..... 148 Care towards infirm, aged and young . . 149 Care to be exercised by such persons 149 Doctrine of identification .... . 149 Imputation of negligence to persons non sui juris 153 The New York rule .... . 153 Criticism of the rule 155 Who are non sui juris .... . 155 Contributory negligence; burden of proof in New York . 157 On plaintiff . ... . 158 On defendant .- ; . 158 INTEODUCTION. Injtjbies. — "All acks or omissions, -wliicli the law rtcog- nizes as the subjects of its provision and applieatiou, are either contracts, torts, or crimes / the first being agreements, express or implied; the seoonA, injuries of omission or commission, done to individuals; and the third, injuries done to the public or the State." \ HiUiard on Torts (3d ed.), 1. Injuries may be the result of. Nonfeasance, or the non-performance of what one is under legal or contract obligation to perform. Malfeasance, or the commission of an unlawful act, or of an act which one had contracted notja-^dp. Misfeasance, or the improper performance of an act which it was one's duty or contract to perform, or which was other- wise lawful. I ToKT DEFINED. — '' It must not be supposed that a definition of the kind can be framed which of itself will be suflicient to explain the term ' tort ' fully to one first approaching the sub- ject. Indeed, no definition, helped out even by labored ex- planation, can convey a full conception of the meaning of such an expression as 'the law of torts'; nothing short of careful study of the specific torts of the law will suffice. The difficulty grows out of the fact that there is no such thing as a typical ex- ample, an actual tort, that is to say, which contains all the elements entering into every other." Bigelow on Torts (6th ed.), 9. ' ' "We have 15een unable to find any accurate and perfect defi- nition of a tort. . . . The text writers either avoid a definition entirely, or frame one plainly imperfect, or depend upon one which they concede to be inaccurate, but hold sufficient for judicial purposes." Bichy. N. Y. Cent, cb Hud. E. E. B. Co., 87 N. y. 382, 390. ' ' A tort is an act or omission giving rise, in virtue of th« common law jurisdiction of the Court, to a civil remedy wliicli is not an action 'of contract. To that extent we know what a tort is not. ' ' Pollock on Torts, 4. " A tort may be said to be a breach of duty fixed by mu- nicipal law for which a suit for damages can be maintained.'' Bigelow on Torts (6th ed.), 10. ' " To constitute a tort two things must concur : a wrongful act committed by the defendant'", and actual or legal damage to the plaintiff." Addison on Torts, 1. The wrongful act or omission is called injuria / actual or legal damage is called da/rnnum. Mr. F. H. Cooke, in an article entitled ' ' A Proposed I^ew Definition of a Tort" (Harvard Law Review, XII., 335), de- fines a tort as " airact or omission, not a mere breach of con- tract, and producing injury to another, in the absence of any existing lawful relation of which such act or omission is a natural outgrowth or incident." TOET, CONTEACT AND OBIMB PAETIAM.Y DISTINGUISHED. A tort is the violation of a right which one holds against all men ; a breach of contract, of a right which one individual holds against another ; a crime, of a right whicTi society declares abso- lutely as its own. In tort and crime the dnty owing is imposed by law ; contract, it is usually the result of an agreement. In tort and breach of contract the remedy is generally by a civil action to recover damages; in crime, by a criminal prosecution,' with the people as plaintiff. " Between actions plainly Vaj contractu and those as clearly ex delicio there exists what has been termed a border-land where the lines of distinction are shadowy and obscure,, and the tort and the contract so approach each other., and become so nearly coincident as to make their practical separation somewhat diiB- cult. . . . And yet, it is co'nceded that a tort may grow out of, or make part of, or be coincident with a contract (2 Bouvier), and that precisely the same state of facts, between the same parties, may admit of an action either ex Gontraotu or ex delicto. (Cooley on Torts, 90.) In such cases the tort is dependent upon, while at the same time independent of con- tract; .for if the latter imposes a legal duty upon a person, the neglect of that duty may constitute a tort founded upon a con- tract. (1 Addison on Torts, 13.) * * * * ■ * * * " It may be granted that an omission^ to perform a contract obligation is never a tort, unless that omission is also an omission of a legal "duty, But such legal duty may arisp, not merely out of certain relations of trust and confidence, inherent in the na- ture of the contract itself, . . . , but may spring from extraneous circumstances, not constituting eleijients of the con- tract as such, although A)nnected with and dependent upon it, and born of that wider range of legal duty which is due from every man to his fellow, to respect his rights of property and person, and refrain from invading them by force or fraud. It has been well said that the liability to make reparation for an injury rests not upon the consideration of any reciprocal obliga- tion, but upon an original moral duty enjoined upon every per- son so to conduct himself, or exercise his own rights as liot to injure another. {Eerwhaoker v. O. O. cfe O. R. B. Co. , 3 Ohio St. 188.) Whatever its origin, such legal duty is uniformly recognized, and has been constantly applied as the foundation of actions for wrongs; and it rests upon and grows out of the relations which men bear to each other in the framework of -o^anized society. It is then donbtless true, that a mere con- tract obligation may establish no relation out of which a separate or specific legal duty arises, and yet extraneous circumstances and conditions, in connection with it, may establish such a relation as to make its performance a legal duty, and its omission a wrong to be redressed." Bich v. iT. Y. Cent, ds Hud. B. B. R. Co.', 8Y IST. T. 382, 390 and 398. " The difference between Crimes and Civil Injuries is not to be sought for in a supposed diffeijonce between their tenden- cies but in the difEerence between tpe modes wherein they are respectively pursued, or wherein the sanction is applied in the two cases. An offence whicli is pursued at the discretion of the injured party or his representative is a Civil Injury, An offence which is pursued by the Sovereign, or by the subordinates of the Sovereigri, is a Crime." Austin, Juris. Lect., XVII. ToET NOT MERGED IN FELONY. — " Where the violation of a right admits of a civil and also of a criminal prosecution, the one is not merged, in the other." N. Y, Code Civ. Pro., § 1899. In some cases, the same wrongful act may constitute a crime as well as a tort. Instances are assault and battery, libel, false imprisonment, public nuisance, negligence when it_ causes homicide, conversion when it involves intent to steal {larceny), and fraud if it amounts to the offence of forgery, or of obtaining goods under false pretences. At cominon law, if the wrongful act amounted to a felony, the aggrieved party could not maintain a civil action until public justice had been satisfied. In such case, the lesser offence was said to be merged in the greater, and the civil action was post- poned. " It is a principle of law, . . . , that where any one in the perpetration of a public wrong commits an injury upon another, peculiar to the injured party, in his individual capacity, and not simply as a member of the coiimiunity, the party in- jured may sustain an action in his individual capacity for the damages which he may have sustained. This was always the rule in cases of misdemeanor, but it did not at common law ex- tend to felonies, as the private wrong was merged in the felony. But by a provision of our new code (§ 7), when the violation of a right admits of both a civil and a criminal remedy, the riwlit to prosecute the one is not merged in the other. " Smithy. Zockwood, 13 Barb. 209, 217. "Such a doctrine [that the private wrong was merged in the felony] can be found in some of the old English cases, ap- plying to certain conditions, circumstances, and the existence of institutions, known in England, but not known in this country ; and though there are cases to be found here, which seem to sup- pose it to be the common law, it never was adopted in this State. Perhaps it was' because its adoption was regarded as being left in doubtj that, as long ago as 1801, the legislature, of this State expressly enacted that persons who.should be aggrieved by any felony might maintain his or her action in like manner as if it had not been committed feloniously ; and in no case should the right of action be mergfed in the felony, or in any manner affected thereby. (Sess. La#s, 180i, Greenleaf's ed., chap. 60, § 19, p. 264.) This statute, has been in force ever since, and is now a part of th^ Kevised Statutes. (Vol. 2, p. 292, § 2.)" Newton v. Portea^ 5 Lansing, 416, 423. " The doctrine, that all civil remedies in favor of a party injured liy a felony are, as' it is said in the earlier authorities, merged in the higher offencfe against society and public justice, or, according to more recent eases, suspended until after the termination of a criminal prosecution against the offender, is the well-settled rnle of law in England at this day, and seems to have had its origin there at a period "long anterior to the settle- ment of this countrj' by our English ancestors. **■*»*** " The source, whence tlie doctrine took its rise in England, is well known. By the ancient common law, felony wa^ pun- ished by the death of the criminal and the forfeiture of all his lands and-goods to the crown. Inasmuch as an action at law against a person, whose body could not be taken iij execution and whose property and effects belonged to the king, would be a useless and fruitless remedy, it was held to be iherged in the public offence. Besides, no such remedy in favor of the citizen could be allowed without a direct interference, with the royal prerogative. Tlierefore a party injured by a felony could originally' obtain no recompense out of the estate of a felon, nor even the restitution of his Own property, except after a convic- tion of the offender, by a proceeding called an appeal of felony, which was long disused, and wholly abolished by St.' 59, Geo. 3, c. 46; or under St. 21, H. 8, c. 11, by which' the judges, were empowered to grant writs of restitution, if the felon was con- victed on the evidence of the party injured or of others by his procurement. (2 Oar. & P. 43, ii.) But these incidents of felony, if they ever existed in this State [Mass.J, were discon- tinued at a very early period in our colonial history. Forfeiture •of lands or goods, on conviction of crime, was rarely, if ever, exacted here; and in many cases, deemed in England to be felonies and punishable with death, a much milder penalty was inflicted by our laws. Consequently the remedies, to which a party injured was entitled in cases of .feloi^y, were never intro- duced into our jurisprudence. No one has ever heard of an ap- peal of felony, or a writ of restitution under St. 21, H. 8, c. 11, in our courts. So far, therefore, .as we know the -origin of the rule, and the reasons on which it was founded, it would seem very clear that it was never adopted here as part of our common law." Boston (& Worcester R. R. Go. v. Dcma, 1 Gray, 83, 96 and 98. ^ Some general principles. — Uhi jus^ ibi\ remedium, i. e., wherever there is a wrong, there is a remedy. This maxim of the law "has at all times been considered so valuable that it gave occasionto the -first invention of that form of action called an action on the case, where the novelty of the complaint is no objection to the action, provided an injury cognizable by law is shown to have been inflicted on tlie plaintiff; for ' this form of action was introduced for the reason that the law would never suffer a wrong and a damage without a remedy;' but there are cases where persons have suffered serious injury from the acts and doings of others of which the law, from reasons of public policy, takes no cognizance." Addison on Torts, 72. ■ Injuria sine (or absque) danino, i. e., a. wrongful act or omission without actual damage. Damnum sine (or absque) injuria, i. e., damage without wrongful act or omission ; damage from inevitable accident, or from the proper performance of a lawful act. " I cin very well understand that no action lies in a case where there is damnum absque injuria ; that is, where there is a damage done without any wrong or violation of any right of the plaintiff. But I am not able to understand how it can cor- rectly be said, ia a legal sense, that an action will not lie, even in case of a wrong or violation of a right, unless it is followed bj' some perceptible damage, which can be estabKs^tied as a mat- ter of fact; in other words, that injuria sine damno is not actionable. . . . The law tolerates no further inquirjrthan whether there hsis been -the violation of a ri^it. If so, the party injured is entitled to maintain hisactijsn for nominal damages, in vindication of his right, if no ottrer damages are fit and proper to remunerate him. " Webi vj Portland Man. Co., 3 Sumner, 189. /' In some classes of cases, e. g. , in deceit and in slander not actionable per se, damage must be alleged and proved in order to make out a cause of action. Sic utere tuo ut aliehum non laedas^ i. e. , so use your own rights as not to injure another. "It is an elementary principle in reference to private rights, that every individual is entitle d to the undisturbed pos- sessi on and lawful enjoyment of his property. The raodeof enjoymen t is necessarily limited by the rights of others — other- wise it might be made destructive of their rights altogether. Hence the maxim sic utere tuo, etc. ... If these rights conflict, the former must yield to the latter, as the more impor- tant of the two, since, upon grounds of public policy, it is bet- ter that one man should surrender a particular use of his land, than that another should be deprived of the beneficial use of his property altogether, which might be the conseqiience if the privilege of the former should be wholly unrestricted. " The use of land by the proprietor is not therefore an absolute right, but qualified and limited by the higher right of others to the lawful possession of their property. ' ' Hay v. The Cohoes Co., 2 N. T. 159, 161. ' ' The maxim sic utere tuo ut alienum non laedas is iterated and reiterated in our books, and yet there is scarcely an aphor- ism known to the law the true application of which is more yague and undefined. Interpreted literally it would enjoin a man against any use of his own property which in its conse- quences might injuriously affect the interests of others; but no such legal principle ever existed. The affairs of life cotild not -well be conducted under the restraints of such a rule. On the contrary every proprietor has absolute control over his own property, and spay do vsritli it whatever he pleases, unless he thereby infringes some fixed legal right of another. ' ' While, therefore, sic utere tuo, etc. , may be a very good moral precept,' it is utterly useless as a legal maxim. It deter- mines no right; it defines no obligation. The cases to which the maxim has been generally applied are those where the owner of one tenement does some act upon his own premises which injuriously "affects the interests of the proprietor of an adjoining tenement." Selden, J., in AuHturn d; Cato Plank Road Co. V. Douglass, 9 N. Y. 444, 445. y/ A Causa jproxima non remota spectatur, i. e., the damage sustained must be the proxiinate and not the remote result of the wrongful act. " What is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it. The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied to the other end, that force being the proximate cause of the movement, or as in the oft-cited case of the squib thrown in the market-place. 2 Bl. Rep. 892. The question always is. Was there an unbroken connection between the wrongful act and the injury, a continu- ous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was tljere some new and independent cause intervening between the wrong and the injury? It is admitted that the rule is difficult of application. But it is generally held, that, in order to war- rant a finding that negligence, or an act not amounting to wan- ton wrong, is the proximate cause o:^ an injury, it must appear that the injury was tlie natural and probable consequence of the negligence or wrongful act, and that it ought to have been fore- seen in the light of the attending circumstances. . . . We do not say that even the natural and probable consequences of a wrongful act or omission are in all eases to be chargeable to the misfeasance or nonfeasance. They are not when there is a suf- ficient and independent cause operating between the wrong and the injury. In such a case the resort of the sufferer must be to the originator of the intermediate cause. But when there is no in- termediate efficient cause, the original wrong must be considered as reaching to the effect, and proximate to it. . . . In a suc- cession of dependent events an interval may always be seen by an acute mind between a cause and its effect, though it i\iay be so imperceptible as to be overlooked by a cDuimoii mind. . . . In the nature of things, there is in every transaction a succession of events, more or less "dependent upon those preceding, and it is the province of a jury to look at this succession of events or facts, and ascertain wh^their tli^ey are -nacurally and probably connected with each other by a continuous ^eqnened, or are dis- severed by new and indeperideiit ^encies, and this must.be de- termined in view of the circurastahees existing at the time." Milwaukee, etc. Railway Co. v. Kellog^g, ^^ U. S. 469, 474. "The maxim causa prooBtina non re mota spectatur means but this. We are not to link together as cause and effect, events having no probable connection in the mind, and which Cjuld not by prudent circumspection and ordihary thoughtfnlness be foreseen as likely to happen in consequence of the act in which we are engaged. It may be true that tlie injury would not have occurred "without the concurrence of our act with the event whidi immediately caused the injury, but we are not justly called to suffer for it tinless the other -event was the effect of our act, or were within the probable range of ordinary circumspec- tion when engaged in the act." Mb Grew v. Stone, 53 Pa. St., 436, 442. - " In determining what is proximate cause, the true rule is, that the injury miist be the natural and probable consequence of the negligence — such a consequence as, under the surrounding circumstanceaof the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act. Tbis.is not a limitation of the maxim causa proxima nan remota spectatur; it only affects its application." Hoag v. Lake Shore <& Mich. Southern R. R. Co., 85 Pa. St. 293, 298. 10 Actio personalis morifur cum persona, i. e., a, persoual action dies with the person. "Such [civil] actions we're primarily divided into two classes, distinguished as actions ea; contraoiu a,nd ex delicto. Tlie actions known as detinne, trespass, trespass on the case, and re- plevin were those used in causes of action arising from torts, and were described as actions ex delicto. Trespass on the case was the appropriate form of remedy for all injuries to person or property which did not fall within the compass of the other forms of action. (3 Stephens' Cora. 449.) At common law, originally, all actions arising ex delicto died with the persons by whom or to whom the wrong was done. Thus, when the action was founded on any malfeasance, or misfeasance, was a tort, or arose ex delicto, such as trespass for taking goods, etc. , trover, false imprisonment, assault and battery, slander, deceit, diverting a water-course, obstructing lights, escape, and many other cases of the like kind, where the declaration imputes a tort done either to the person or property of another, and the plea must be ' not guilty, ' the rule was actio personalis moritur cum persona. (1 Wms. on Exrs. 668.) " Hegerich v. Keddie, 99 K Y. 258, 259. History of the statutory modifications of the above BULE. In England. — "The first amendment was made as Ions ago as 1330, by the statute 4 Ed. 3, c. 7, of which the English version runs thus : " Item, whereas in times past executors have not had actions for a trespass done to their testators, as of the goods and chattels of the same testators carried away in their life, and so such tres- passes have hitherto remained unpunished ; it is enacted that the executors in such cases shall have an action against the tres* passers to recover damages in like manner as they, wliose exec- utors they be, should have had if they were in life. ******* "Then by 3 & 4 Will. 4, c. 42 (A. D. 1833) actionable injuries to the real estate of any person committed within six calendar months before his death may be sued upon by his per- 11 sonal representatives, for the benefit of his personal estate, within one year after his death : and a man's estate can be riiade liable, through his personal representatives, for wrongs done by him ^within six calendar months before his death ' to another in respect of his property, real or personal. ' In this latter case tlie action must be brought against the wrongdoer's representa- tives within six months after they have entered on their office. "Nothing in these statutes affects the case of a personal injury causing death, for which according to the maxim there is no remedy at all. .'^' . . "Railway accidents, towards the middle of the present century, brought the hardship of the common law rule into prominence. A man wlie was maimed or reduced to imbecility by the negligence of a railway company's servants might re- cover heavy damages. If he died of his injuries, or was killed on the spot, his family might be ruined, but there was no remedy. This state of things brought about the passing of Lord Campbell's Act (9 &10 Vict. c. 93, A. D. 1846), . . . It confers a right of action on the personal representatives of a person whosedeatli has been caused by a wrongful act, neglect, or default such that if death had not ensued that person migjit have maintained an action ; but the right conferred is riot for the benefit oF the personal estate, but ' for.the.bene^t of the wife, husband, parent and child of the person whose death shall have been so caused.' . "By an ajnending Act of 1864, 27 & 28 Vict. c. 95, if there is no personal representative . . . , or if no action is brought by personal . representatives within six months, all or any of the persons for whose benefit the right of action is given by Lord Campbell's Act may sue in their own names. ' ' Pollock on Torts, 56. ' Statutoet modifications in IJew, YokkJ — "Under the clause of the Constitujtif^n iuab.mg me luies of the common law tlie law of the State, it must be held that these rules still deter- mine the survivability of actions for torts, except where the law 12 has been specifically modified or changed hy statute. ' ' Segerich V. Keddie, 99 N. Y. 258, 260. On April 7, 1801, the Legislature enacted, " That execu- tors and administrators shall have actions of trespass for taking and carrying away the goods of their testator or intestate in his lifetime, and that any person, his executors or administrators shall have the like actions of trespass against the executors or administrators of any testator or intestate, who in his lifetime shall have wasted, destroyed, taken or carried away or con- verted to his own use the goods or chattels of any" such person, and shall have the like process, judgment and execution as in other actions against executors and administrators." Laws of ■1801, ch. 174. Referring to the above act, Kent, Ch. J., says: "The statute . . . gives to executors, an action of trespass [de bonis asportatis], for taking and carrying away the goods of their testator, in his lifetime. This statute was borrowed from 4 Ed. III. c. 7, which had made a similar provision ; and by the equity and liberal construction of that statute, it has been ex- tended to almost every injury, done to the personal estate of the testator before his death. (Toller's Law of Ex. 121, 346.) It applies to wasting and destroying, as well as to taking and car- rying away the goods of the testator. Our act goes further, and makes this conclusion inevitable. It gives to executors an action of trespass against the executors and administrators of any* person, who in his lifetime, had wasted, destroyed, taken or carried away the personal property of their testator. ' ' Snider V. Oroy, 2 Johns. Eep. 227, 229. While chapter 174 of the Laws of 1801 was proljably re- pealed by the act of 1813, the portion of that act, above quoted,- was re-enacted verbatim in the Eevised Laws, passed April 13, 1813, pursuant to an act entitled, " An Act for Publishing tlie Laws-of this State." See Y~\ I., p. 311, of the Eevised I41WS of New York. " The Eevised Laws (Yoh i,-'j, oil) . . . enlarged the scope of the statute of 4th Edward 'I, a\,u ^i -.iijed'for actions by and gainst executors and i"]:ni:..o!,rators for property 13 taken and converted by the testator or intestate during his life- time. Under this condition of the law the provisions of the Eevised Statutes [2 E. S. M7, §§ 1-2] were enacted in 1828, . . . " Hegerich v. Keddie, 99 N. Y. 258, 261. "For wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrong-doer, such action may be brought by \he person injured, or after his death, by his executors or administrators, against such wrong-doer, and after his death against his executors or administrators, in the same manner and with the like effect in all respects, as actions founded upon contracts. " But the preceding section shall not extend to actions for slander, for libel, or to actions of assault and battery, or false imprisonment, nor to actions on the case for injuries to the per- son of the plaintiff, or to the person of the testator Or intestate of any executor or administrator." 2 R. S. 447, §§ 1-2. " If the language of the statute ... be collated and read according to its plain meaning and intent, the following sentence would seem to be the result : Actions by and against executors and administrators for wrongs done to the property rights, or interests of their intestate or testator are hereby authorized, but so far as such wrongs have heretofore been remediable by actions on the case for injuries to the person oi the plaintiff, or to the person of the intestate or testator of any executor or administrator, they shall not survive the death of the person to whom or by whom the wrong is done.'' y Hegerich , V. Aeddw,99 K Y. 258, 262. Chapter 450, of the Laws of 1847, for the first time pro- vided for actions to recover damages for injuries causing death by wrongful act, neglect or default, as follows : " § 1. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default, is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, not withstand- 14 iDg the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. " § 2. Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the ex clusive be^^ fi* "^^ ttio jyjd ow and next of kin of such deceived person, and shall be distributed to such widow and next of kin in the proportions provided by law in relation to the distribution of personal property, and left by persons dying intestate ; and in every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death to the wife and next of kin of snch deceased person : provided that every snch action shall be com- menced within two years after the death of such deceased person." Chapter 256, of the Laws of 1849, amended chapter 450, of the Laws of 1847, by fixing a maximum amount of recovery in such actions, viz., " The jury may give such damagesias they shall deem a fair and just compensation, not exceeding five thousand dollars, with reference to the pecuniary injuries result- ing from such death to tlie wife and next of kin of such deceas^ person." Chapter 450, of the Laws of 1847, was further amended by chapter 78, of the Laws of 1870, by including the husband among the beneficiaries, viz., "The amount recovered in every such action shall be for the exclusive benefit of the husband or widow and next of kin of such deceased person ; ' ' and also by adding interest to the damages recovered, viz., "and the amount of damages recovered in any such action shall draw interest from the time of the death of such deceased person, wliich interest shall be added to the verdict and inserted W the entry of judgment in such action." Such was the law in New York down to the adoption of the Constitution in 1894, when the right as well as the amount of recovery in such actions were placed beyond the reach of any action by the legislature. "The right of action now existing 15 to recover damages for injuries resulting in death, shall never be abrogated ; and the amount recoverable shall not be subject to any statutory limitation." N. Y. Const., Art. I., § 18. The present provisions of the N. Y. Code of Civil Pro- cedure in such actions are : \ " § 1902. The executor or administrator of a decedent, who has left, him or her surviving, a husband, jsriie, or next of kin, may maintain an action to recover damages for a wrongful act, neglect, or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the deeedent, by reason thereof, if death had not ensued. Such an action must be commenced within two years after the decedent's death. "§1903. The damages recovered in an action, brought as prescribed in the last section, are exclusively for the benefit of the decedent's husband or wife, and next of kin ; and, when they are collected, they must be distributed by the plaintiff, as if they were unbeflu gathed, ass gte^Ieft in his hands, after pay- ment of all debts, and expenses of administration. But tlie plaintiff maj' deduct therefrom the expenses of the action, and his commissions upon the residue; which must be allowed by the surrogate, upon notice, given in such a manner,' and to such persons, as the surrogate deems proper. "§ 1904. The damages awarded to the plaintiff may be such a sum as the jury, upon a writ of inquiry, or upon a trial, or, where issues of fact are tried without a jury, the court or the referee, deems to be a fair and just compensation for the pecuniary injuries, resulting from the decedent's death, to the person or persons, for whose benefit the action is brought. When final juidgment for the plaintiff is rendered, the clerk must add to the sum so Awarded, interest thereupon from the decedent's death, and include it in the judgment. The inqui- sition, verdict, report, or decision may specify the day from which interest is to be computed ; if it omits so to do, the day may be determined by the clerk, upon affidavits. ' ' ' ' OOMPENSATIOH' FOE THE PECHNIAET INJURIES ' ' IN SUCH Aonass. — "I do not understand from the phraseology of the 16 statute that an extremely nice and contracted interpretation should be put upon the term ' pecuniary injuries. ' A liberal scope was designedly left for the action of the jury. They are to give such damages as they shall deem a fair and just com- pensation with reference to the pecuniary injuries resulting from such death. They are not tied down to any precise rule. The matter is to be submitted-to their sound judgment and sense of justice. They must be satisfied that pecuniary in- juries resulted. If so satisfied, they are at liberty to allow them from whatever source they actually proceeded which could pro- duce them. If they are satisfied from the history of the family, or the intrinsic probabilities of the case, tha,t they were sus- tained by the loss of bodily care, or intellectual culture, or moral training, which the mother had before supplied, they are at liberty to allow for it. The statute has set no bounds to the sources of these pecuniary injuries. If the rule is a dangerous one, and liable to abuse, the legislatai-e and not the courts must apply the corrective." T'llley v. Hudson River Railroad, Co., 29 N. Y. 232, 286. "The statute implies from the death of the person negli- • gently killed damages sustained by the next of kin. {Quin v. Moore, 15 N. Y. 432.) Recognizing the generally prospective and indefinite character of those damages, and t'le impossibility of a basis Tor accurate estimate, it allows a jury to give what they shall deem a just compensation, . . . The jury is neither omnipotent, nor left wholly to conjecture. They are required to judge, and not merely to guess, and, therefore, such basis for their judgment as the facts naturally capable of proof can give should always be present, and is rarely, if ever, absent. The pecuniary loss in any such case maj' be composed" of very different elements. It may consist of special dam.»Jj;es, thatis of an actual, definite loss, capable ' f proof, and of nieasureuicTit with approximate accuracy ; and also of prospective and general damages, incapable of precise and accurate estimate becai^se of the contingencies of the unknown future. An example of such special and actual damages occurred in the case of Murplutf y. JV. T. Central, etc., R. R. Co. (88 N. Y. 446), where we 17 allowed as one element of the total loss the funeral expenses of the deceased. . . . But the value of a human life is a dif- ferent matter. The damages to the next of kin in that respect are necessarily indefinite, prospective, and contingent. They cannot be proved with even an approach to accuracy, and yet they are to be estimated and awarded, for the statute has so com- manded. But eveu in such case there is and there must be some basis in the proof for the estimate, . . . Human lives are not all of the same value to the survivors. The age and sex, the general health and intelligence of the person killed, the situ- ation and condition of the survivors and their relation to the de- ceased ; these elements furnish some basis for judgment. That it is slender and inadeg^uate is true {TiMey v. Hudson Siv. H. JS. Co. , supra) ; but it is all that is possible, and while that should be given {Mclntyre v. N. T. Cent. R. R. Co., 37 N. Y. 289), more can not be required." Houghhirky. Presi- dent, etc.,J).& H. C. Co., 92 N". Y. 219, 224. FuNEEAL EXPENSES. — "Under a similar statute in Eng- land it has been held that funeral expenses cannot be recoveied. {DaUon V. South-eastern Ry. Co., 4 C. B. [N. S.J 296; Boulter V. Welster, 13 Weekly Kep. 289.) But in this coun- try, so far as I can discover, it has been uniformly held that the plaintiff can recover such expenses if the law imposes upon the relatives for whose benefit the suit is brought the obligation to bear them. {P&nn. R.R. Co. v. Bantam, 54 Penn. St. 495; Owen V. Brockschmidt, 54 Mo. 285 ; Roeder v. Ormsby, 22 How. Pr. 270.)" Murphy y. JV. Y. Cent, etc., R. R. Co., 88 N. Y. 445, 446. Rbcoveet not limited to minority in case of infants. — " The jury were not bound, in estimating the compensation to be made for the death of the child, to confine their considera- tions to her minority. It is true that the plaintiff, as father, could command her services only during her minority. But in certain contingencies she might, after her majority, owe him the duty of support, which could, by legal proceedings, be enforced ; 18 and after that event she might, in many ways, be of great pecu- niary benefit to him. In estimating the pecuniary value of this child to her next of kin, the jury could take into consideration all the probable, or even possible, benefits which might result to them from her life, modified, as in their estimation they should be, by all the chances of failure and misfortune. There is no rule but their own good sense for their guidance, and they were not in this case bound to assume that no pecuniary benefits would come to the next of kin from this child after her majority." BirkettY. Knickerbocker Tee Go., 110 N. Y. 504, 608. This being a purely statutory right of action, conferred upou the legal representative of the decedent in favor of certain specified beneficiaries, and not an action to recover for loss of services, to limit recovery to minority would seem to be unrea- sonable and improper. The cause of action abates with the death of the WEON&DOEE. — ^" The cause of action here provided for does not purport to be in any respect a derivative one, but is an original right conferred by the statute upon representatives for the benefit of beneficiaries, but founded upon a wrong already actionable by existing law in favor of the party injured, for his damages. . . . The statute, although creating a new cause of action, and passed for the express purpose of changing the rale of the common law in respect to the survivability of actions, and conferring a right upon representatives which they did not before possess, does not undertake, either expressly or impliedly, to impair the equally stringent rule which precluded the main- tenance of such actions against the representatives of the offend- ing party. " The plain implication from its language would, therefore, seem to be at war with the idea that the legislature intended to create a cause of action enforceable against, as well as by repre- sentatives. The cause of action thereby given is not to the estate of the deceased person, but to his or her representatives as trustees, not for purposes of general administration, but for the exclusive use of specified beneficiaries. 19 " The wrong defined indicates no injury to the estate of the person killed, and cannot either logically or legally be said to^afEect any property rights of such person, unless it can be maintained that a person has a property right in his own exist- ence. . . . Whatever claim a wife or children have at law upon the husband and father for support perishes with the life of such person, and thereafter their claims upon his estate are governed by statutory rules. * * ■ *^- - ¥ ■! ■ — * — — r— — — ~* " The complaint in the present action describes a cause of action arising out of the death alone, and suggests no injury to the estate or property of the deceased. Such a cause of action is abated by the death of the wrong-doer. " Hegerich v. Keddie^ 99 K Y. 258, 267. Three maik heahs of duty: — Every one is under obliga- tion, (1) To abstain from wilful injury. ^^ (2) To respect property rights. (3) To act with reasonable and proper care. — LiABiLiTT IN TOKT. — Generally' speaking, natural capaoii^^ not personal status, determines liability in tort. The law, how- ever, does not hold persons of weak or immature same strict accountability, in all cases, as pCTgjjjprflmected by ntT" such disabilities. / — ~^ ' 'In the law of contract various grounds of personal disability have to be considered with some care. ... In the law of tort it is otherwise. Generally speaking, .there is no limit to personal capacity either in becoming liable for civil injuries, or in the power of obtaining redress for them. It seems on prin- ciple that where a particular intention, knowledge, or state of mind in the person charged as a wrong-doer is an element, as it BOinetimes is, in constituting the alleged wrong, the age and iraental capacity of the person may and should be taken into ac- count (along with other relevant circumstances) in order to ascertain as a fact whether that intention, knowledge, or state 20' of mind was present. But in every case it would be a question of fact, and no exception to the general rule would be established or propounded." Pollock on Torts, 46. IiTFAiirTS. — "There is no doubt that an infant is liable for his torts not connected with contracts, and that he is not liable for mere contracts unconnected with torts." Hewitt -v. 'Wa/rren, 10 Hun, 560, 562. ' ' Acts, however aggravated, which merely establish a breach of the contract on the part of an infant, manifestly are insufficient. The plaintiff cannot convert anything that arises out of a contract with an infant, into a tort, and then seek to enforce the contract, through the medium of an action ex delicto.'''' Moored. Mi^tmcm, 1 Hun, 578, 579. " The contr act of an infan t is not vo id, b ut is voi dable at the election of the infant. If a horse is let to him to go a jou r- ney, tliiir not an ingredient, and the actor is responsible, although he acted with a good and even laudable purpose, with- out any malice. The law looks to the person, damaged by an- other and seeks to make him whole, without reference to the purpose or the condition, mental or physical, of the person caus- ing the damage. The liability of a lunatic for his torts, in the opinions of judges, has been placed upon several grounds. The rule has been invoked. that where one of two innocent persons must bear a loss, he must bear it whose act caused it. It is said that public policy requires the enforcement of the liability that the relatives of a lunatic may he under inducement to restrain 33 him, and that tort feasors may not simulate or pretend insanity to defend their wrongful acts causing damage to others. The lunatic must bear the loss occasioned by his torts, as he bears his other misfortunes, and the burden of such loss may not be put upon others." Williams v. Hwys, 143 N. T. 442, 446. Maeeied women. — At common law, a married woman was liable for her torts, but, as she was under disability to contract, she could not be held liable for wrongs growing out of the vio- lation of a contract. In tort she had to sue and be sued jointly with her husband, who, under the fiction of the merger of legal identity, received the benefit of favorable judgments, and was liable for adverse ones. But in New York, "The husband is not a necessary or proper party to an action or special proceeding to recover damages to the person, estate or character of his wife, and all sums that may be recovered in such actions or special proceedings shall be the separate, property of the wife. The husband is not a necessary or proper party to an action or special proceeding to recover damages to the person, estate or character of another on account of the wrongful acts of his wife committed without his instigation." Code Civil Procedure, § 450. " A married woman has a right of action for an injury to her person, property or character or for an injury arising out of the marital relation, as if unmarried. She is liable for her wrongful or tortious acts ; her husbamd is not liable for such acts unless they were done by his actual coercion or instigatioHi; and such coercion or instigation shall not be presumed but must be proved." K Y. Laws of 1896, ch. 272, § 27. W Mat husband or wife sue the othee to eecoveb dam- ages FOR personal injoeies ? — "May husband and wife, in this State, sue each other in a civil action to recover damages for as- sault and battery ? . . . " It is well settled that at common law neither could main- tain such an action against the other. Although courts of equity, for many purposes, treated husband and wife as persons of dis- tinct legal existence, as the civil law treated them, capable of 23 having separate estates, debts and interests, the common law in- flexibly incorporated and consolidated the legal identity of the wife with that of her husband, and denied the right of the one to sue the other, technically on the ground of the legal fiction of unity. Referring to actions of this nature between husband and wife, Mr. Eeeve (Dom. Rel., 4th ed., p. 93) remarks: 'There is no doubt but that there are cases in which a battery by the husband of the wife may be justified on the ground of absolute necessity to repel an injury offered by her; and it is equally true that a battery of the husband by the wife may be justified on the same grounds. The nature of the connection between them is such, that no atrocity of conduct in this respect can give either a right to an action to recover damages. ' ' ' Public policy, liowever, quite as much as the convenient fiction of unity, hsis influenced . . . courts ... in their conclusions. As Mr. Schouler (Dom. Kel., 6th ed., § 52) says : ' This disability of the sf ouses to sue one another is not merely the technical one that, under the old procedure, husband and wife must join, but is founded on the principle that husband and wife are dae. There is sound policy, moreover, in discour- aging the pair from making of their matrimonial bickerings a cause of action for damages against one another.' But, when it was sought to carry the rule of unity to its logical consequence, in Wienman v. Ash, 13 0. B. 836, an action for libel, the defendant contending that there was no publication, because the sending a defamatory letter to the plaintiff's wife was like sending it to the plaintiff himself, the court demurred, and said : ' In the eye of the law, no doubt, man and wife are for many purposes one ; but that is a strong flgurative expres- sion, and cannot be dealt with as that all the consequences must follow which would result from its being literally true. ' ******** ". . . The le&rned judge in Mtzgerald V. Quann,109 N. y. 4il, says: 'Statutes changing the common law must be strictly construed, and that the common law must be held no further abrogated than the clear import of the language used in the statutes absolutely requires. However much modern judges 24 mi^ht Eometimes be inclined to doubt the beneficial results to be derived from an always strict adherence to the rule, yet the rule itself is too securely and firmly established and grounded in our jurisprudence to be altered other than by legis- lative interference.' ******** "In 1882 a General Term of the Supreme Court, in Schultz V. Schvltz, 27 Hnn, 26, influenced by the conviction that an assault by the husband of the wife was ' in violation of the laws of God and man,' . . . recognized the right of the wife to sue her husband in such an action, . . . The Court of Appeals (89 N. Y. 6J:4) reversed this decision, without opinion. * * * * *^* * * " The Domestic Eelations Law of 1896, chapter 272, has repealed in toto the old, familiar married -wo man's acts of 1848 (ch. 200), 1849 (ch. .^75), 1860 (ch. 90), 1862 (ch. 172), and 1890 (ch. 51), bearing more particularly^ on the subject. " Section 27 of the Domestic Relations Law provides that ' A married woman has a right of action for an injury to her person, property or character, or for an injury arising out of the marital relation, as if unmarried.' At first glance this pro- vision may seem broad enough to permit a wife to sue her hus- band in an action for damages for personal injuries. To say that her rights in such cases are co-extensive with the rights of unmarried women, is not to fay that her rights, in cases of per- sonal injury, include actions against her husband, because the rule of unity can in no wise enter in the case of unmarried women, and the husband's common-law ri^ht of exemption is a factor to be considered. The rule of unity worked both ways. Cai it be said that under the present law a husband has a right of action against his wife for personal injuries? The law has certainly not removed his disability in this regard, even should it be held that the wife's right of exemption has been removed under the broad statement, in the same section, that ' she is liable for her wrongful or tortious acts.' . "The fact that personal injuries are grouped with injuries 25 to the wife's property can not justify the conchision that her rights, in cases of personal injuries, are as broad and inchisive as are her rights in cases of injuries to her property. The powers and rights of a married woman, in respect to her prop- erty, are very particularly set forth in section 21 of the Domes- tion Relations Law, and the intention of the Legislature to abro- gate the rule of unity in such cases is clear and unmistakable : 'A married woman has all the rights m respect to property, real or ^personal, and the acquisition, use, enjoyment and disposition thereof, and to make contracts in respect thereto with any per- son, incliiding her husband^ and to carry on any business, trade or occupation, and to exercise all powers and enjoy all rights in respect thereto and in respect to her contracts, and be liable on such contracts, as if she were unmarried.' The Legislature evi- dently concluded that the expression any person was not broad enough to include the husband. " With the earlier married -woman's acts now things of the past, and the codification of the leading provisions of those acts in the present Domestic Relations Law before us, it must still be conclnded that the Legislature has not, up to the present time, al)rogated the old common -law rule of unity so as to per- mit either party to the marital relation to sue the other in a civil action for personal injuries." Author's article on Assault and Battery, III. University Law Review, 67 and 108. CoKPOEATioNS. — The old idea that an action ^^^c^will not lie against a corporation, being an artificial person, is. long since exploded. ' ' It was formerly supposed tiiat a corporation aggrega,te could not commit an actionable tort, and that no action sound- ing in tortwould lie against such a corporation. This conclusion rested upon the idea that a corporation is an artificial being, created by the sovereign, and endowed by the sovereign with power to do certain things, and none other. . . . The judges were accustomed to reason that a corporation can act only in the mode pointed out in its charter; . . . ajid that when those who liave its management or control, or who act for 36 it in a given particular, step beyond the authorization of the charter in doing an act, it is not the act of the corporation, but is their own individual act. ... As corporations multi- plied, it was seen that intolerable wrongs would be done, if men could, by clothing themselves with the immunities of cor- porate organization, commit wrongs without being answerable for them, for which they would be answerable if they had com- mitted them in their natural capacities. The courts, therefore, while -not denying or repudiating this fiction, and in the full face of its logical results, have been obliged to find their way out of the difficulty as best they could ; and the result is, that it is now well-settled, within certain limits, both as to private and municipal corporations, that whenever the agent of a corpora- tion, proceeding within the general scope of its powers and of the powers delegated by it to him, commits a wrong, the corpo- ration must pay daniages to the person injufed, just as a natural person would be compelled to do under like circumstances. " Thompson's Com. on the Law of Corp. , § 6275. ' ' A corporation is liable to the same extent and under the same circumstances as a natural person for the consequences of its wrongful acts, and will be held to respond in a civil action at the suit of an injured party for every grade and description of forcible, malicious or negligent tort or wrong which it commits, however foreign to its nature or ieyond its granted powers the wrongful transaction or act may be." W. Y. ds If. H. It. R. Co. V. Schuyler, 34 N. Y. 30, 49. May a corporation be held liable in an action for slanderf The rule of liability as enunciated in N. Y. c& N. R. R. R. Co. V. Sahuyler {supra) certainly seems broad enough to include such actions. Yet it is stated in EicTvner v. Bowery Bank, 24 App. Div. 63, that a corporation cannot^ be made liable in an action to recover damages for slander, apparently because " The corporation itself could not talk." " A corporation can act only by or through its officers or agents, and as there can be no agency to slander, it follows that a corporation cannot bo guilty of slander. It has not the capacity for committing that wrong. If an officer or an agent of a cor- 37 poration is guilty of slander he is personally liable, and nolliy]- ity results to the corporation. " Townshend on Slander and Libe!^ §265. ' ' A corporation will not, it is submitted, be liable for any slander uttered by an officer, even though he be acting honestly for tlie benefit of the company and within the scope of his duties, unless it can be proved that the corporation expressly ordered and directed that officer to say those very words, for a slander is a voluntary tortious act of the speaker. " Odgers on Libel and Slander, p. 368. Such conclusion savore of retrogression both iu mode of reasoning and in manner of consideration, and rests too literally upon the idea that a corporation is an intangible, ideal person. It is inconsistent with the rule laid down in JV. Y. & N. H. B. li. Co. V. Schuyler, 34 JST. Y. 30, 49, and also with the de- cision of the Court of Appeals in analogous cases. If a corpo- ration cannot talk, neither can it write or strike^ yet our Court of Appeals has held corporations liable in actions of libel, assault and battery, malicious prosecution, and conspiracy. " ITo good . reason can be presented why a corporation should not be held liable in a proper case for malicious prosecution. Actions for libel, for assault and for wilful trespasses, in all of which the in- tent of the mind is an essential element, have been successfully prosecuted against corporations and the recovery upheld by the courts, and no distinction can be made between the principle which underlies that class of actions and an action for malicious prosecution. No action for malicious prosecution against a corporation has been reported in this State, but elsewhere the courts have sustained them. (J^enton v. Wilson Sewing Machine Co., 9 Phil. 189; Goodspeedv. EastHaddam Bamk, 22 Conn. 535; Yaruie v. Erie Railroad Co., 3 Vroom. 334; Boogher v. Life Assn. of America, 42 Am. 413.) We concur in the reasoning and decision of these cases. ' ' Morton v. Metropolitan Life Ins. Co., 34 Hun 366, 367,'and affirmed by the Court of Appeals (103 N. Y. 645) on the opinion below. See also Buffalo LubricaUng Oil Go. v. Standard Oil Co., 106 N. Y. 669. 28 If a corporation can be held liable in an action for ma- licious prosecution, no good reason appears why it should be exempt from liability in an action for slander, because the nature of the wrong is not unlike malicious prosecution. The real offence in each case consists of damage to reputation, and is effected by the same means, viz., speech. In each case the plaintiff claims injury to character by reason of improper charges or accusation, the one being defamation in court, and the other, inpcds, and recovery for the one bars recovery Jor the other. "In an action for malicious prosecution, the plain- tiff is entitled to recover damages not only for his unlawful arrest and imprisonment, and for the expenses of his defence, but for the injury to his fame and character by reason of the false accu- sation. The latter indeed is, in many cases, the gravamen of the action. An accusation of crime, made under the forms of law, or on the pretence of bringing a guilty man to justice, is made in the most imposing and impressive manner, and may inflict a deeper injnry upon the reputation of the party accused, than the same words uttered under any other circumstances. The most appropriate remedy for the calumny in such eases, is by the action for malicious prosecution. The injured party can not be entitled to two recoveries for the same cause, and a re- covery in that form must, therefore, be a baf to a subsequent action of slander, for the same identical accusation." Sheldon V. Carpenter, 4 N. Y. 578, 579. A corporation cannot do anything of itself. It must and always does act through its officers or agents, and its responsi- bility should be determined not by what the artificial body cam, or cannot itsdf do, but by what it has done through its agents, " acting or pretending to act about the business for which the organization was formed, and for which they were appointed agents." (Thompson's Com. on Law of Corp., § 6275). Charitable coepoeations. — " On the 20th day of Febru- ary, 1894, the plaintiff [a pay patient] entered the institution maintained by the defendant as a public charitable institution (Laws of 1848, Chap. 319), on Eleventh and Twelftli streets. 29 in the City of New York. On the afternoon of the following day she was put under the influence of ether for the perform- ance of a ' slight ' operation. . . . The operation was suc- cessfully performed, and plaintiff, while still under the influence of the anesthetic, was carried to her room and there placed in a bed from which a hot, uncovered water-bag had not been re- moved by the nurse in attendance. Thus her right leg was severely burned. ******* ' ' What is the duty owed by the defendant to the plaintiff The defendant, the hospital, is a public charitable in- stitution. It was doing no business for profit, and the moiiey it received from patients like the plaintiff went to the support of the institution, and was far from suflicient to meet its ex- penses without contributions of charitably disposed individuals. Its affairs were managed by Sisters of Charity, who freely gave constant and faithful service; there were no stockholders to whom dividends, even if earned, could have been paid. "As I read the cases, such a defendant is only liable for negligence in the original selection of its servants; having ful- filled that duty, it is not liable for the subsequent act of such servant, however careless or negligent, unless previous knowl- edge of unfitness has been brought home to the corporation. This limitation is founded upon public policy, upon which th« very doctrine of respondeat superior itself may be said to be founded. Wood on Master and Servant, § 277. Much may be said against the soundness of this principle, and whether it would not be wiser to hold even public charitable institutions to a higher degree of care. But in this country it has been settled that for the promotion of works of humanity, and for the greater good of the greater number, that this is a sound public policy. McDonal V. Oeneral Hospital, 120 Mass. 432; Boyd, V. Insurance Patrol of Philadelphia, 113 Penn. St. 269; Joel V. Woman^ s Hospital, 89 Hun, 73. •' The opinions in the case of Glavin v. Rhode Island Hospital, 12 R. I. 411, contain many expressions antagonistic to this limitation of liability, and to the wisdom of the policy 30 which underlies it, but in its decision the court holds the cor- poration liable only for care in tlije selection of its servants. " ■it^a/rd V. 8t. Vwicmts Hospital, 23 Misc. 91, 92. Such exemption rests more rationallj on grounds of public policy, than on any conception of law that it is unconscionable to divert trust funds in the case of charitable corporations. Many decisions, however, . proceed upon the latter theory. " A public charity, whether incorporated or not, is but a trustee, and is bound to apply its funds in furtherance of the charity and not otherwise. This doctrine is hoary with antiquity and prevails alike in this country and in England, where it originated as early as the reign of Edward V., and it was an- nounced in the Tear Book of that period. " . ; . Not only is a trustee for a public or private use not permitted to misapply the trust funds committed to his care, but if he convert them to his own use the law punishes him as a thief. How much better than a thief would be the law itself, were it to apply the trust funds contributed for a charitable object, to pay for injuries resulting from the torts or negligence of the trustee?" Fire Ins. Patrol v. Boyd, 120 Pa. St. 624, 647. Such exemption also appears to be reasonable in those cases where the person injured, at the time of the injury, is the re- cipient of the charities of the corporation, but very unreasonable in those cases where the person injured, at the time of the in- jury, stands as stranger to the corporation. Yet it was held in Benton v. Trustees, 140 Mass. 13, that an action for damages for personal injuries could not be maintained by a person who had entered a hospital building on business, and was injured therein by reason of the unsafe condition of the stairs, although such unsafe condition was caused by the negligence of the super- intendent of -the hospital. ~ " State oe Geneeal Goveenment. — "Even the State or General Government may be guilty of individual wrongs; for while each is a sovereignty, it is a corporation also, and as such capable of doing wrongful acts. The difficulty here is with the 31 remedy, not with the right. No sovereignty is subject to suits, except with its own consent. But either this consent is given by general law, or some tribunal is established with power to hear all just claims. Or if neither of these is done, the tort re- mains; and it is always to be presumed that the legislative authority will make the proper provision for redress when its attention is directed to the injury." Cooley on Torts (2d ed.), 141. See also Rill v. TJ. S.', 9 How. 386. MusnoiPAL CoEPOBATioNs. — "There are two kinds of duties which are imposed upon a municipal corporation : One is of that kind which arises from the grant of a special power, in the exercise of which the municipality is as a legal individual ; the other is of thatr kind which arises, or is implied, from the use of political rights under the general law, in the exercise of which it is as a sovereign. The former power is private, and is used for private purposes ; the latter is public and is used for public purposes. {Lloyd v. The Mayor, 5 JST. Y. 374.) The former is not held by the municipality as one of the political divisions of the State ; the latter is. In the exercise of the former power, and under the duty to the public which the ac- ceptance and use of the power involves, a municipality is like a private corporation, and is liable for a failure to use its power well, or for an injury caused by using it badly. But where the power is intrusted to it as one of the political divisions of the State, and is conferred not for the immediate beneiit of the mu- nicipality, but as a means to the exercise of the sovereign power for the benefit of all citizens, the corporation is not liable for nonuser, nor for misuser by the public agents. {Eastrruim v. Meredith, 36 N. H. 284.) Where the duties which are im- posed upon municipalities are of the latter class, they are gener- ally to be performed by officers who, though deriving their ap- pointment from the corporation . itself, through the nomination of some of its executive agents, by a power devolved thereon as a convenient mode of exercising a function of government, are yet the officers, and hence the servants of the public at large. They have powers and perform duties for the benefit of all the 32 citizens, and ure not under the control of the municipality which has no benefit in its corporate capacity from the perform- ance thereof. They are not then the agents or servants of the municipal corporation, but are public officers, agents or servants of tlie public at large, and the corporation is not responsible for their acts or omissions, nor for tlie acts or omissions of the subordinates by them appointed. {Fisher v. Boston, 104 Mass. 87.) And where a municipal corporation elects or appoints an officer, in obedience to an act of the legislature, to perform a pub- lic service, in which the corporation has no private interest and from which it derives no special benefit or advantage in its corpo- rate capacity, such officer cannot be regarded as a servant or agent of the municipality, for whose negligence or want of skill it can be held liable. It has appointed or elected him, in pursuance of a duty laid upon it by law, for the general welfare of the in- habitants or of the community. {Mafford v. New Bedford, 16 Gray, 297.) He is the person selected by it as the authority empowered by law to make selections; but when selected and its power exhausted he is not its agent, he is the agent of the public for whom ia.11 sn pf'ndu?1- t>ipnn gg T»nt. tr> i>jnrA ainnthnr; aa d if he does no t, and— another— thaceb^sustains damage, he-shall answer for it. ' ' Fa/rwell v. Boston <& Woroes- ter R. R. Co., 4 Met. 49, 55. " In Blake v. Ferris (1 Selden, 48), it was held that the liability of any one, other than the party actually guilty of any wrongful act, proceeds on the maxim, ' Qui facit per aUum faoit per se. ' The party employing has the selection of the party employed, and it is reasonable that he who has made choice of an unskilful or careless person to execute his orders, should be responsible for an injury resulting from the want of skill or want of care of the person employed ; but neither the principle of the rule, nor the rule itself, can apply to a case where the party sought to be charged does not stand in the rela- tion of master or principal to the party by whose negligent act the injury has been occasioned. ' ' Pack v. The Mayor, etc. , of JVew York, 8 N. Y. 222, 225. " This rule is founded upon public policy and convenience. Every person is bound to use due care in the conduct of his, business. If the business is committed to an agent or servant, the obligation is not changed." Siggins v. The WatervUet Twrnpike Co., 46 N. Y. 23, 27. 3S ' ' The master is liable only for the authorized acts of the servant, and the root of his liability for the servant's acts is his consent, express or implied, thereto. . . . It is not the test of the master's liability for the wrongful act of the servant, from which injury to a third person has resulted, that he ex- pressly authorized the particular act and conduct which occa- sioned it, . . . ' ' It is, in general, sufficient to make the master responsi- ble that he gave to the servant an authority, or made it his duty to act in respect to the business in which he was engaged when the wrong was committed, and that the act complained of was done in the course of his employment. The master in that case will be deemed to have consented to and authorized the act of the servant, and he will not be excused from liability, although the servant abused his authority, Or was reckless in the perform- ance of his duty, or inflicted an unnecessary injury in executing his master's orders. ' ' Rounds v. Del. , Lack. & West. R. R. Co., 64 N. Y. 129, 133. " Blackstone (I., 417) is short in his statement, and has no other reason to give than the fiction of an ' implied command. ' It is currently said, Respondeat superior; which is a dogmatic statement, not an explanation. It is also said, Quifaevtper aliuTn facit per se; but this is in terms applicable only to authorized acts, not to acts that, although done by the agent or servant ' in the course of the service, ' are specifically unauthor- ized or even forbidden. Again, it is said that a master ought to be careful in choosing fit servants ; but if this were the reason, a master could discharge himself by showing that the servant for whose wrong he is sued was chosen by him with due care, and was in fact generally well conducted and competent : which is certainly not the law." PoUock on Torts, 67. IisTDEPENDENT coNTEACTOK. — " The rule that where the re- lation of master and servant or principal and agent does not exist, but an injury results from negligence in the performance of work by a contractor, the party with whom he contracts is not responsible for his negligence or that of his servants, is well 39 established by the authorities in this State. {Blake v. Ferria, » 5 N. Y. 48; Pack v. Mayor, etc., 8 K T. 222; Kelly v. Mayor, etc., 11 N. Y. 432; MoGafferty y. S. D. & P. M. R. R. Co., 61 N. Y. ITS; Kingv. JST. T. C. <& H..R. R. R. Co., 66 jST. Y. 181; Tmonof Pierrepont v. Zovdess, 72 N. Y. 211; Ferguson v. Huhhell, 9Y N. Y. 507; Herrmgton v. Village of Landngburgh, 110 E". Y. 145; Roemer v. Striker, 142 X. Y. 134.) "There are certain exceptional cases where a person em- ploying a contractor is liablie, which, briefly stated, are : Where the employer personally interferes with the work, and the acts performed by him occasion the injury ; where the thing con- tracted to be done is unlawful ;" where the acts performed create a public nuisance ; and where an employer is bound by a statute to do a thing eflBciently and an injury results from its ineffi- ciency." BergY. Pan-sons, 166 N. Y. 109, 112 and 115. Ma ster's duty to HIS SEEVAiirr. — " The general principles have been so frequently discussed in recent cases that anything more than a brief summary would be unprofitable. Thus it has been held that a master owes the duty to his servant of furnisliing adequate and suitable tools and implements for his use, a safe and proper place in which to prosecute his work, and, w^hen they are needed, the employment of skillful and com- petent workmen to direct his labor and assist in the performance , of his duties. Coal Co. v. Reid, 3 Macq. 275 ; Lamng v. Railroad Co., 49 N. Y. 522; Brydon v. Stewart, 2 Macq. 34; Booth v. Rail/road Co., 73 IST. Y.'4ffi That ' no duty belonging to the master to perform for the sarety and protection of his servants can be delegated to any servant of any grade so as to exonerate the master from responsibility to a servant who has been injured by its non-p)erf ormanee. ' Mahri, v. President, etc., 94 W. Y. 6i30; Booth v. Railroad Co., sv/pra. And that, when the general management and control of an industrial en- terprise or establishment is delegated to a superintendent, with power to hire and discharge servants, to direct their labors and 40 obtain and employ suitable means and appliances for the conduct of the business, such superintendent stands in the place of the master, and his neglect to adopt all reasonable means and pre- cautions to provide for the safety of the employees constitutes an omission of duty on the part of the ilnaster, rendering him liable for any injury occurring to the servant therefrom. Cor- corom V. MoUbrook, 69 N. Y. 517. ' ' Pantsa/r v. TiUy Foster^ Min. Co., 99 N. T. 368,^372. MoDmcATioir of the docteine of eespondeat supbeiok. — A modification of the doctrine of respondeat superior esempts the master from liability to servants for injuries suslaioed through the fault of fellow-servants. "The general rule that the employer is not liable to one servant or laborer for an injury resulting from the carelessness or negligence of another servant or co-laborer . . . was first promulgated in England in 1837 (3 M. & W. 1), in South Carolina in 1841 (1 McCullom 385), and in Massachusetts in 1842 (4 Met. 49), and has been adopted in this and most of the other States in the Union. There has been a diversity of rea- sons given for its adoption, which have led to some confusion in its application. ' ' FliTce v. Boston & Albany R. B. Co. , 63 ]Sr. Y. 549, 561. Reasons foe the eube. — " The reasons for the rule are well stated by Pratt, J. , in the first case in which it was applied in this State (6 Barb. 231), and were in substance that the rule respondeat superior does not itself spring directly from prinei- ciples of natural justice and equity, but has been established upon principles of expediency and public policy for the protec- tion of the community ; and that, in view of the unjust conse- quences which may ensue from its application foK. injuries by co-servants, the same principles of public policy demand its limitation, and that while the general rule was demandeds|or the protection of the community, the exception is demanded fol^ the protection of the employer, especially in view of the man- ner in which the principal business of the country is now trans- 41 acted. This view evinces the flexibility of the principles of the common law, which are capable of adaptation to new or changed circumstances, and enables courts to adjust the application of the principle not in obedience to a supposed arbitrary rule, but with such limitations and qualifications as best accord with rea- son and justice. In applying the rule we should be cautious not to violate the very principles upon which it is founded. While shielding the employer from unjust and burdensome lia- bilities, we should not withhold all redress from the employed for remissness and carelessness in respect to duties which fairly devolve upon the former as the principal, and over which the latter have no control. ' ' Flike v. Boston cfe Albcmy R. R. Co., 53 K Y. 549, 562. ' ' The general rtfle, resulting from considerations as well of justice as of policy, is that he who engages in the employment of another for the performance of specified duties and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and, in legal presumption, the compensation is adjusted accord- ingly. And we are not aware of any principle which should except the perils arising from the carelessness and negligence of those who are in the same employment. These are perils which the servant is as likely to know, and against which he can as efifectively guard, as the master. They are perils incident to the service, and whj^i^i can be as distinctly foreseen and provided for in the rate of compensation as any others." Fcurwell v. Bos- ton <& Worcest&r R. R. Co., 4 Met. 49, 57. " If the exemption of masters from liability to servants for the negligence of f eUow-servants is founded upon any principle whatever, it must be upon an assumption that, in a majority of cases so large as to constitute a rule for all others, both employer and employee tacitly understand, when the employment begins, that the employee is not to expect indemnity from the employer against the negligence of other persons in the same common em- ployment. If it is true that such is the universal understanding between the parties, though unexpressed, and that such was the case before the question had ever been passed upon by the courts. 42 there is a good foundation for the rule, in all cases in which an express- contract to the same effect would be binding. For, upon a familiar principle of the la\v of contracts, where both parties to the contract of hiring have, in fact, each understood the contract in that sense, or where the employee entered into the contract of service, knowing or believing that the employer understood this condition to beimpHed, the condition is implied, just as e ffectua lly as if it had been put down in writing. And if such a mutual understanding has always existed, in the vast majority of cases, and a contrary understanding has not been known to exist in any appreciable number of cases, such a state of facts creates a settled usage, the terms of which are implied in every contract from which they^are not expressly excluded, even though one of the parties may not have known of the usage or intended to assent to it, so long as the other party was not aware of that circumstance. These are well-known principles in the law of contracts; and they are properly applicable to the law of master and servant. ' ' Sherman & Redfield on If egli- gence (5th ed.), § 179. Who aee fellow-servants. — " A master is not liable to those in his employ for injuries resulting from the negligence, carelessness or misconduct of a fellow-servant engaged in the same gene ral business. Nor is the liability of the master en- larged when the servant who has sustained an injury is ofa grade of the service inferior to that of the servant or age nt w hose negligence, carelessness or misconduct has caused the injury, if the services of each, in his particular labor, are directed to the samejgeneral. end. And though the inferior in grade is subject to the control and directions of thesup^or whose act or omis- sion has caused the injury, the rule is the same. Nor is it nec- essary, to exempt the master from liability, that the sufferer and the one who causes the injury should be at the time engaged in the same particular work. If they are in the employment of the same master, engaged in the same common work and per- forming duties and services for the same general purposes, the master is not liable." ~ JDamAng v. if. T. G.R.B. Co., 49 N. T. 521, 628. 43 Kaijk oe grade immaterial. — "The master is not re- sponsible for the negligent performance of some detail of the work intrusted to the servant, whatever may have been the grade of the servant who executes such detail. If it is the work of the servant, and he volunteers to perform it, and the master is not at fault in furnishing proper materials, there is no breach of duty on the part of the latter." Kimmer v. Weber, 151 ]Sr. Y. 417, i22. Must be under control of one master. — Common em- ployment and ultimate purpose are insuflBcient to make men fel- low-servants. InKHroy v. D. c6 H. Q. Co., 121 N. Y. 22, it was contended that the person injured and the person causing the injury were fello<5r-servants because they were engaged in one common employment, but the court said (p. 30) that " they could not be fellow-servants unless they were under the control of one master." Concuebent negligence. — Where a servant has been in- jured, partly through the wrongful act of a fellow- servant, and partly in consequence of the omission of a duty owing by the master, the master may be hfeld responsible for the entire dam- age suffered, because the law will not attempt to apportion it. " It is no doubt settled in this State that an employee of a railroad company takes the natural risks of his emplbyment, and among others the risk of injury resulting from the negligence of his fellow-servants. Thas rule, however, has no application if the company has at the same time disregarded its obligation to provide either a suitable road-bed or engines, cars, or other nec- essary appointments of the railroad,* so that the injury is not en- tirely caused by the negligenceof the fellow-servant, but in part at least is the result of that omission of duty. In such a case the negligence of the co-servant will not exonerate the company from the consequences of its own default." " EUisy. N. 7., L. E. A W. R. R. Co., 95 K Y. 546, 552. " It has recently been several times held in this court that co-operation of the negligence of the master and a co-servant in 44 the production of an injury to an employee, does not excuse the master from liability therefor; . . . That a fellow-servant may, by card and caution, operate a defective and dangerous machine so as not to produce an injury to others, does not ex- empt the master from his liability for an omission to perform the duty which the law imposes upon him of exercising reason- able care and prudence in furnishing safe and suitable appliances for the use of his servants. The rule which excuses the master under such circumstances presupposes that he has performed the obligations which the law imposes upon him, and that the injury occurs solely through the negligence of the co-employee." StHngham v. StewaH, 100 ]Sr. T. 516, 526. ^ YicE-PKiNciPALS NOT FELLOw-sEEVANTS. — " At an early day, American judges divided sharply upon the question of the liability of a master to his servants, for the negligence of a servant of superior grade and in control of ocher servants. The question was passed upon, almost at the same time, in the East and the West : the Massachusetts court holding strongly in favor of masters, and the Ohio court strongly against them. A long conflict of opinions followed ; and . . . , in 1887, there was no general settled rule. Although entire unanimity has not yet been reached on some material points, several fundamental principles are fully agreed upon. It is now universally held, in American courts, that a master always may have, and some- times T/iust have, a servant, who acts as his representative or alter ego towards other servants ; and that for the negligence of such representative, while aotmg as such, the m^ter is respon- sible to the other servants, precisely as if it were his own. By general consent such representative, while acting as such, is called a ' vice-principal. ' And a vice-principal is not a ' fellow- servant."' Shearman & Kedfield on Negligence (5th ed.), §226. " It frequently becomes very diflBcult to determine whether the particular act in any case is that of the master in his charac- ter as such, or is only that of a mere fellow-servant. It is not a question as to the rank of the individual who gives the order 45 or performs the act. The question is one as to the character of the order or act, whether it is one which is given or performed as an order or act of the master in his character as such, or only as an order or act delegated by the master to another and per- formed by such other as an employee. The rule as to the lia- bility of the master for th« act ' of a servant is well known. Church, Ch. J., said in the Flike case that the master must be held liable for negligence in respect to such acts or duties as he is required to perform as master, and without regard to the rankj or title of the agent whom he has intrusted with its perform- ance. {Flike V. Boston, etc., Co., 53 IST. T. 549.) This lan- guage was repeated in Crispin v. Babbitt (81 IST. Y. 516), where the liability of the master foj the negligence of his ser- vant, by which another servant has suffered injury, was said not to depend up6n the doctrine of tesponcledt swpeHor, but upon the omission of some duty of the master which he has confided to such inferior employee. If the act oniitted were of the ki;nd which the master owed to the employee the duty of performing, . he would be responsible to the employee, for" the manner of its performance. It is not a question of rank amon^ the different employees. The rule thus laid down has been since frequently approved in this court." Hawkins v. N". T., L. E. c& W. B, R. Co., 142 N. T. 416, 420. ASSAULT KKYi BATTERY. Sectieitt of peeson. — " Security for the person is among the first conditions of civilized life. The law therefore protects us, not only against actual hurt and violence, but against every kind of bodily interference and restraint not justified or excused by allowed cause, and against the present apprehmsion of any of these things." Pollock on Torts, 182. " One of the most important objects to be attained by the enactment of laws and the institutions of civilized society is, each of us shall feel secure against unlawful assaults. "Without such security society loses most of its value. Peace and order and domestic happiness, inexpressibly more precious than mere 46 forms of government, cannot be enjoyed without the sense of perfect security. "We have a right to live in society without being put in fear of personal harm. But it must be a reason- able fear of which we complain. ' ' Beach v. Homcock, 27 N. H. 223. Assault defined. — An assault " is an attempt or oflfer to beat another, without touching him." Blackstone Com., III., 120. " An action which puts another in instant fear of unlawful force, though no force be actually applied, is the wrong called assault." Pollock on Torts, 182. An assault is "an attempt with force or violence to do a corporal injury to another ; and may consist of any act tending to such corporal injury, accompanied with such circumstances as denote at the time an intention, coupled with the present ability, of using actual violence against the person." Says v. The. People, 1 Hill, 351, 352. ' ' An assault (without contact) is an attempt, real or appar- ent, to do hurt to another's person, within reach. It is an attempt to do bodily harm, stopping short of actual execution." Bigelow on Torts (6th ed.), 149. Intent. — " To constitute an indictable assault or battery, there must always be an intent, expressed or implied, to do in- jury to another ; but one may be liable in a civil action for as- sault or battery, where there was an entire absence of intent to do any injury, the ground of liability being that the assault was committed in the pursuance of an unlawful act or was the result of negligence." II. Am. & Eng. Eac. of Law (2d ed.), 953. While it is true that intention to do harm is immaterial in the civil wrong ^of assault, in t§ntion to put in fear of present bodily harm would seem to be necessary to produce the effect of an assault. " There is no battery, according to the modern view un- less the blow itself was intentional, or unless the defendant was otherwise trespassing at the time." Bigelow on Torts (6th ed ) 155. • ' ' 47 Essential elements. — 1. The offer or attempt to do harm, i 2. The indicated ijftent to put in fear of present , bodily harm. 3. The real or apparent present ability to do harm. , Theeats.-^' It is not every threat, when there is no actual personal T^Ieiice, that constitutes an assault; there must, in all cases, b« Ihe means of, carrying the threat inta:effect. ' ' Stephens V. J4'..y*, 4 Oar. & P. 349. "Verbal threats of personal violence are not, as such, a ground of civil action at all. If a man is thereby put in reason- able bodily fear he has. his remedy, but not a civil one, namely by security of the peace." Pollock on Torts, 188. Assault included in batteet. — " Battery includes assault, and though assault strictly means an inchoate battery, the word is in modern usage constantly made to include battery. No reason appears for maintaining the distinction of terms in our modern practice." Pollock on Torts, 183. .The modern use is apparent in the English Criminal Code of 1879. " An assault is the act of intentionally applying force to the person of another directly or indirectly, or attempting or threatening by any act or gesture to apply such force to the per- son of another, if the person making the threat causes the other to believe upon reasonable grounds thatrhe has present ability to effect his purpose."" Eng. Crim.- Coj^ (Indict. Offences) Bill, s. 203. *^^" Batteet defined. — " The least touching of another's per- son wilfully, or in anger, is a battery ; for the law cannot draw the line . between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred and no other having a right to meddle with it, in any the slightest manner." Blackstone, Com., III., 120. Contact. — " It is not necessary that the defendant should 48 come in contact with the plaintifi's body. It is sufficient if the blow or touch come upon the plaintiff's clothing. ******* "Indeed, it is not necessary that the plaintiff's body or clothing be touched. To knock a thing out of the plaintiff's hands, such as a staff or cane, would clearly be a battery ; and the same would be true of the striking a thing upon which he is resting for support, at least if this cause a fall or cencussion to the plaintiff." Bigelow on Torts (6th ed.), 153. ~X In People v. Moore, 50 Hun, 356, a peddler, seated in sUa sleigh, was driving his team, on his way to deliver milk to huK customers. The defendant barred his passage at a certain point, seized the reins, took the horses by their heads, turned them around, and told the peddler to drive on. The defendant was convicted of assault [assault and battery] in the third degree, and on appeal to the General Term of the Supreme Court, the court (at p. 358) said : " It is plain, . . . , that the force which he [the defendant] applied to the horses and sleigh just as effectually touched the person of Synder [the peddler], as if he had taken him by his ears or shoulders and turned him right about face. The horses and sleigh were the instruments with which he directed and augmented his personal and physical force against, and upon the body of Snyder. Snyder did receive bodily harm. One receives bodily harm, in a legal sense, when another tonches his person against his will with physical force, intentionally hostile and aggressive, or projects such force against his person." Use of force oe violence not unlawful. — " To use or attempt, or offer to use, force or violence upon or towards the person of another is not unlawful in the following cases : "1. When necessarily committed by a public officer in the performance of a legal duty ; or by any other person assisting him or acting by his direction ; " 2. When necessarily committed by any person in arrest- ing one who has committed a felony, and delivering him to a public officer competent to receive him in custody ; m u 3. When committed either by the party about to be'ia- jured or by another person in his aid or defense, in preventing or attempting to prevent an offense Against his person, or a tres- pass or other unlawful interference with real or personal property in his lawful possession, if the force or violence used is not more than sufficient to prevent such offense ; ^ ' ' 4. When committed by a parent or the authorized agent of any parent, or by any guardian, master, or teacher, in the exer- cise of a lawful' authority to restrain or correct his cliild, ward, apprentice or scholar, and the force or violence used is reason- \able in manner and moderate in degree ; " 5.- When committed by a carrier of passengers, or the authorized agents or servants of such carrier, or by any^rson assisting them, at their request, in eispelling from a carriage, railway car, vessel or other vehicle, a passenger who refuses to obey a lawful and reasonable regulation prescribed for the con- duct of passengers, if such vehicle has first been stopped and the force or violence used is not more than sufficient to expel the offending passenger, with a reasonable regard to his personal safety; *' 6. When committed by any person in preventing an idiot, lunatic, insane person, or other person of unsound mindj including persons temporarily or^. partially deprived of reason, from committing an act dangerous to himself or to anotlier, or in enforcing such restraint as is necessary for the protection of his person or for his restoration to health, during such period only as shall be necessary to obtain legal authority for the re- straint or custody of his person." N. Y. Penal Code, § 223. Consent. — " In cases where life and limlTare exposed to no serious danger in the common course of things, consent is a good defense to the charge of assault, provided there is no breach of the peace, and consent is not obtained by fraud, or through ignorance or incapacity." II. Am. & Eng. Enc. of Law (2d ed.), 986. The rule rests upon the maxim volenti non ^t in- juria. In BarkoU v. Wright, 45 Ohio St. 177, the evidence 90 showed that plaintiff and defendant fought by agreement, and that plaintiff was so severely injured that one of his fingers had to be amputated. The court said : "It would seem at first blush contrary to certain general principles of remedial justice to allow a plaintiff to recover damages for an injury inflicted on him by a defendant in a combat of his own seeiing ; or where, as in this ease, the fight occurred by an agreement between the parties to fight. Thus, in cases for damages resulting from the clearest negligence on the part of the defendant, a recovery is denied the plaintiff if it appear that his own fault in any way contributed to the injury of which he complains. And a maxim as old as the law, volenti non fit imguria, forbids a recovery by a plaintiff where it appears that the ground of his complaint had been induced by that to which he had assented ; for, in judg- ment of law, that to which a party assents is not deemed an in- jury. Brown, Leg. Max. 268. But as often as the question has been presented, it has been decided that a recovery may be had by a plaintiff for injuries inflicted by the defendant in a mutual combat, as weU as in a combat where the plaintiff was the first assailant, and the injuries resulted from the use of ex- cessive and unnecessary force by the defendant in repelling the assault. These apparent anomalies rest upon the importance which the law attaches to the public peace as well as to the life and person of the citizen. From considerations of this kind it no more regards an agreement by which one man may have as- sented to be beaten than it does an agreement to part with his lib- erty, and become the slave of another. But the fact that the inju- ries were received in a combat in which the parties had engaged by mutual agreement may be shown in mitigation of damages." Defense of peeson. — "Self-defense is a primary law of nature, and it is held an excuse for breaches of the peace, and even for homicide itself. But care must be taken that th# re- sistance does not exceed the bounds of mere defense so as to become vindictiv.e ; for then the defender would him- self become the aggressor. The force used must not exceed the necessity of the case. " Sorihner ^. Becuih^ ^Yiwaa 448 450. 51 In JEUiott V. Brotan, 2 "Wend. 497, it was held that the party first attacked is not entitled to maintain an action for assault and battery against the other party, if he exceeded the bounds of self-defense, the court (p. 500) saying: "It is true that both parties may be guilty of a breach of the peace, and may be liable to punishment by indictment at the suit of the people, whose laws they have both offended ; but a civil action cannot surely be sustained by each of them against the other. The judge should have told the jury, that although the defendant might have given the first blow, yet if the plaintiff had used not only more force than was necessary for self-defense, but had unnecessarily abused the defendant, that then he was not entitled to recover damages." In Dole V. Ersk'me, 35 N. H. 503, the court held that under such circumstances each would have a cause of action against the other. In that case the court said : " Up to the time that the excess is used, the party [first] assaulted is in the right. Until lie exceeds the bounds of self-defense he has committed no breach of the peace, and done no act for which he is liable \ while his assailant, up to that time, is in the wrong, and is liable for his illegal acts. Now, can this cause of action which the assailed party has for the injui^^ inflicted upon him, and which may have been severe, be lost by acts of violence subse- sequently committed by himself? ' ' We think that these are not matters of set off ; that the one cannot be merged in the other, and that each party has been guilty of a wrong for which he has made himself liable to the other. There have, in effect, been two trespasses committed ; the one by the assailant in .commencing the assault, and the other by the assailed party in using the excessive force ; and, upon principle, we do not see why the one can be an answer to the other, any more than an assault committed by one party on pne day can be set off against one committed by the other party on ftnother day. The only difference would seem to consist in the length of time that has' elapsed between the two trespasses. In a case where excessive force is used, tlie party using it is in- 53 nocent up to the time that he exceeds the bonnds of self-defense. "When he uses the excessive force,, he then for the first time be- comes a trespasser. And wherein consists the difference, except it be that of time, between a trespass committed by him then, and one committed by him on the same person the day after ? " Defense of pkopeett. — "It is elementary that one may justify an assault and battery in self-defense or in defense of his possession of his real or bersonal property. But the general rule is that a right of property merely, not joined with, the possession, ■will not justify the owner in committing an assault and battery upon the person in possession, for the purpose of regaining pos- session, although the possession is wrongfully withheld. . . . This rule is founded upon consideration&of public policy, to pre- vent parties from disturbing, the public peace by attempts to right ihemselves by force instead of resorting to the remedy by action." BUss v. Johnson, 73 N. Y. 529, 533. " Unquestionably, if one takes another's property from his ' possession without right and against his will, the owner or per- son in charge may protect his possession, or retake his property, by the use of necessary force. He is not bound to stand by and submit to wrongful dispossession or larceny when he can stop it, and he is not guilty of assault in thus defending his right, by using force to prevent his property from being carried away. But this right oi defense and recapture involves two things : first, possession by the owner, and, second, a purely wrongful taking or conversion, without a claim of right. If one has in- trusted his property to another, who afterwards, honestly though erroneously, claims it as his own, the owner has no ri^ht to retake it by personal force. If he has, the actions of replevin and trover in many cases are of little use. The law does not permit parties to take the settlement of conflicting claims into their own hands. It gives the right of defense, bat not of re- dress. The circumstances may be aggravating; the remedy at law may seem to be inadequate; but still the injured party can- not be arbiter of his own claim. Public order and t!ie pnbUo peace are of greater consequence than a private right or an oc- 53 casional hardship. Inadequacy of remedy is of frequent occur- rence, but it cannot find its complement in personal violence. ' ' Kirhy v. Foster, 17 E. I. 437. FALSE IMPRISONMENT. Freedom of peeson. — " Freedom of the person includes immunity not only from the actual application of force, but from every kind of detention and restraint not authorized by law. The infliction of such restraint is the wrong of false im- prisonment ; jvhich though generally coupled with assault, is "nevertheless a distinct wrong." Pollock on Torts, 188. Defined. — "A false imprisonment consists in the total, or substantially total, restraint of a man's freedom of locomotion, without authority of law and against his will. ' ' BigeldW on Torts (6th ed.), 166. ' ' False imprisonment is necessarily a wrongful interference with the personal liberty of an individual. The wrong may be committed by words alone, or by acts alone, or by both, and by merely operating on the 5gIT of the individual or by personal violfenee, or by both. It is not necessary that the individual be confined within a prison or within walls: or that he be as- saulted or even touched. It is not necessary that there should be any injury done to the individual's person, or to his char- acter, or reputation. Nor is it necessary that the wrongful act be committed with malice, or ill-will, or with the slightest wrongful intention. . . . All that is necessary is, that the individual be restrained of his liberty without any sufficient legal cause thereof, and by words or acts which he fears to dis- re^rd. " Vome v. Knowles, 17 Kan. 440. " A prison may have its boundary, large or narrow, visible and tangible, or, though real, still in the conception only ; it may itself be movable or fixed : but a boundary it must have, and that boundary the party imprisoned must be prevented from passing. He must be prevented from leaving that place, within the ambit of which the party imprisoning would eoqfine 54 him, except by prison-breach. Some confusion seems . . . to arise from confounding imprisonment of the body with mere loss of freedom. It is one part of the definition of freedom to be able to go withersoever one pleases. But imprisonment is something more than the mere loss of this power. It^includes the 3otion_Q£_cestraint wiUnn;_some Jh^^ or power_extgrior__to_,ouj:,jownJ ' Si/rd v. Jones, 7 Adol. & E. [N. S.J 742. Essential Elements. — "To constitute the injury of false imprisonment there are two points requisite : 1. The detention of the person : and, 2. The unlawfulness of such detention. Every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the pubUc streets. Un- lawful, or false, imprisonment consists in such confinement or detention without sufficient authority." Blackstone, Com., III., 127. Justification. — "When an action for false imprisonment is brought and defended, the real question in dispute is mostly, though not always, whether the imprisonment was justified." Pollock on Torts, 190. Abrests with wabeant. — "The most common and im- portant case of justification, rendering lawful, that is to say, what otherwise would be unlawful, is where an officer has made an arrest under a lawful warrant of a court of justice. ' ' Bige- low on Torts (6th ed.), 168. S ' ' A sufficient judicial warrant takes away from an imprison- ment the essential element of illegality, and completely justifies an arrest. . . . It is by no means clear when a warrant is not sufficient to justify the arrest. If it be void on its face it is, of course, not sufficient. To be regular on its face, the warrant must at least charge the Qommission of a criminal wrong, and conform in other respects with, statutory provisions and recognized practice. . . . Where, however, the warrant 55 is void, either from material defect in its language, for want of jurisdiction of the court, or because of the court having no power to issue it, the sheriff who executes it, the attorney who prepares it, the client who authorizes it, and the witness who causes the arrest, all are liable at common law for the false im- prisonment." Jaggard on Torts, I., 424. Void and irkegulak pkocess distinguished. — " It cannot be disputed but that an attorney who causes void or irregular process to be issued in an action, which occasions loss or injury to a party against whom it is enforced, is liable for the damages thereby occasioned. In the case of void process the liability attaches when the wrting is committed and no preliminary pro- ceeding is necessary to vacate or set it aside, as a condition to the maintenance of an action. Process, however, that a court has general jurisdiction to award, but which is irregular by rea- son of the non-performance by the party procuring it, of some preliminary requisite, or the existence of some fact not dis- closed in his application therefor, must be regularly vacated or annulled by an order of the court, before an action can be maintained for damEiges occasioned by its enforcement. {Day v. Bach, 87 N. T. 66.) In such cases the process is considered the act of the party and not that of the court, and he is, there- fore, made liable for the consequences of his act. " Yoid process is such as the court has no power to award, or has not acquired jurisdiction to issue in the particular case, or which does not in some material respect comply in form with the legal requisites of such process, or which loses its vitality in consequence of non-compliance with a condition subsequent, obedience to which is rendered essential. Irregular process is such as a court has general jurisdictijn to issue, but which is unauthorized in the particular case by reason of the- existence or non-existence of some fact or circumstance rendering it improper in such a case." Fischer v. Lcmgbem, 103 N. Y. 84, 89. Erroneous process. — " There can be no doubt of the general principle, that void or irregular process, furnishes no 56 justification to the party for acts done under it, with this liniite- tion : that if the process is irregular only, so that it is merely voidable, and not void, it must be set aside or vacated before trespass dan be brought. On the other hand, it is equally well settled that if the process was erroneous only, it protects the party for acts done under it while in force, and he may justify under it after it has been set aside." Day v. Bach, 87 N. Y. 66, 60. Aeeests without waeeamt. — An officer cannot make an arrest in a civil action without the protection of a warrant. As regards arrest in civil actions, see ch. VII., tit. I., of the N. Y. Code of Civil Procedure. The right to make arrests without a warrant is confined to infractions of the criminal law and is usually regulated by statute. " A peace officer may, without a warrant, arrest a person : 1. For a crime, committed or attempted in his presence. 2. When the person arrested has committed a felony, although not in his presence. ' ' 3. When a felony has in fact been committed, and he has reasonable cause for believing the>person to be arrested to have committed it." N. Y. Code Crim. Pro., § 177. " h^ primate citizen may arrest another : "1. For a crime conunitted or attempted in his presence. "2. When the person arrested has committed a felony, although not in his presence^" N. Y. Code Crim. Pro., § 183. ' ' My understanding of the law is, that if a felony has in fact been committed by the person arrested, the arrest may be justified by any person without warrant, whether there is time to obtain one or not. If an innocent person is arrested upon suspicion by a private individual, such individual is excused if a 4@lony was in fact committed and there was reasonable ground to suspect the person arrested. But if no felony was committed by any one, and a private individual arrest without a warrant, such arrest is illegal, though an officer would be justified if he acted upon information^om another which he had reason to rely on." HoUey v. Mix, 8 Wend. 350, 353. 57 Malice and want of peobable cause. — The existence of malice and want of probable cause are not necessary elements in the pia,intiff's case, in an action for false imprisonment. They may be introduced for the purpose of enhancing damages, bat they do not in any sense constitute his cause of action, because unlawfulness of detention is the gravamen of the alleged wrong. Where the defendant has made an arrest without a warrant, and seeks to justify, he may introduce proof of probable cause as effective justification, but, except defendant be an officer, only upon proof that a felony had in fact been committed. " This case was tried as though it were an action for ma- licious prosecution. In such an action the burden was upon the plaintiff to show a want of probable cause. No such evidence was given, and, therefore, as such an action, the case was prop- erly disposed of. " But the allegations of the complaint are for an illegal arrest and detention. Such acts constitute what is usually denominated an action of false imprisonrnent ; an action in the nature of a trespass for a direct wrong or illegal act, in which the defendant must have personally participated. {Johnstone v. Sutton, 1 Tenn. Rep. 544.) Or -the act must have been by his direct or inairect procurement. {Hopkins v. Crowe, 7 C. & P. 573.) The gist of such an action is an unlawful detention, and motive will be inferred so fai:, at least, as to sustain the ac- tion ; and evidence to disprove actual motive only bears upon the question of damages. " Probable cause, or reasonable ground, for suspicion against a plaintiff, affords no justification for an arrest or im^- prisonment, unless a felony has actually been eommitted; in which case the burden of proving that a felony had actually been committed, and the facts relied upon to estabKsh probable cause, or reasonable ground for suspicion, is upon the defend- ant." Bums V. Erben, 40 'E. Y. 463, 465. "Even malicious motives and the absence of probable cause do not give a party arrested an action for false imprison- ment. They may aggravate his damage, but have nothing whatever to do with the cause of action." Marks y. Town- send, 97 N. Y. 590, 597. 58 INJURIES IN FAMILY RELATIONS. Fiction of seevicb. — "It seems that prior to the statute of laborers (23 Edw., III., 1349) no action at law lay for any injury involved in such relations. The preamble of this statute recites the mortality consequent on the pestilence of that time, and referred to ' the grievous incommodities which of lack, es- pecially of plowmen and laborers, may hereafter come. ' Among other provisions, it imposed heavy penalties on every person who procured, harbored, or retained the servant of another during the time be had contracted to serve. From this statute arose the actions commonly called ""per quod actions, ' because of the peculiar wording of the pleadings. The action lay under the statute by the employer against a third person who interfered with the relationship of his servant, ^ per quod servitium ami- sit. ' This was easily adapted so as to be used by a father for the seduction of his child, and by a husband for abuse by a stranger of his wife (in the form of pleading, ' per quod con- sortium amisit. ') ' ' Jaggard on Torts, I. , 447. Negligent injuet to cfriLD, not causing death. — "It seems to be the doctrine of the law of England, that the right of a parent to maintain an action for an injury to his minor child from, the tortious act of a third person is founded exclu- sively upon the loss of service, and that the parent has no remedy even for expenses incurred unless the child is old enough to be capable of rendering some act of service and the, relation of master and servapt, express or implied, exists between them. . But when the action is. maintainable on the ground of loss of service, then both by the law of England and of this country, the parent may claim indemnity, not only for the actual loss of service to the time of the trial, but also for any loss of service during the child's minority, which, in the judg- ment of the jury and according to the evidence, will be sus- tained, and for expenses necessarily incurred by the parent in the cure and care of the child in consequence of the injury. The English rule, which denies to the parent any 59 remedy for medical and other expenses incurred in consequence of the injury to the child, except as incident to the loss of ser- vice, ignores the parental relation and obligation as an independ- ent ground of recovery, although it may be manifest that the parent had sustained a pecuniary loss as the proximate result of the wrong. ******* "The right of the parent in an action for loss of service of a child disabled by a tortious injury, to recover for prospective loss of service during the child's minority is well settled. These damages are, however, of necessity, to a great extent speculative or conjectural. There are many contingencies which may de- prive the parent of the services of a child, and even make the child a pecuniary burden to the parent, although the particular injury had not happened. The cliild may die from disease or other accident, or the parent may die. . . . But as only one action can be maintained against a wrongdoer for a single wrong, the^ law, from necessity, permits consequences not yet fully ascertained, but which are reasonably certain to happen, to be anticipated, and a jury is allowed to estimate the damages for future loss of service in the light of experience and of such evidence as can be given. ' ' In the absence of controlling authority, we are of opinion that in an action by a parent, founded on loss of service of the child, only expenses actually incurred by the pareflt for medi- cine or medical attendance, or which are immediately necessary to be incurred, are recoverable as incident to the main cause of action, and that future, prospective, contingent expenses . are recoverable only in an action by the child. ' ' Cvm,ing V. BTOoTcl/yn City R. B. Co., 109 N. T. 96, 96. Negligent injuet to child, causing death. — " The plain- tiff was the mother of one Clara O. Nelson, now deceased. The deceased was an infant, unmarried, in the service of her mother, her father being dead. The defendant is a physician and at- tended said Clara in her last illness. . . . The first [cause of action] charges the defendant with malpractice in his attendj ance on the patient, by reason of which said Clara died. 60 ' ' It clearly was the rule at common law that no civil ac- tion would lie for causing the death of a human being. (Cooley on Torts, *262.) While a husband or parent might maintain an action for a wrong causing loss of services from a wife or child, if the injury resulted in death, this could not, at the common law, be taken into account either as a ground of action or as am aggravation of damages, and the plaintiff's recovery would be limited to loss of service intermediate the injury and thejleathi (Cooley on Torts, *226.) The exaef question was determined by the Court of Appeals in Green v. Hudson River R. R.'Co. (2 Abb. Ct. App. Dec. 277). Since the time of that decision, I cannot find that there has ever been in this State a contention for the contrary rule. Of course, for many years the statute has prescribed a remedy for such wrongs. An action for a wrongful act causing the death of any person may be maintained by the executor or administrator of such person for the benefit of his nexToT kin. (Code Civ. Proc. § 1902). The plaintiff, however, has not brought this action in snch capacity. But, though the trial court erred in assuming that the plaintiff could maintain an action for the death of her daughter, still there was enough in the complaint and in the evidence to show that the daughter was sick for some few days prior to her decease. For loss of services during this period and the expense of care and attendance during the like time, the plaintiff was entitled to re- cover. Thei'efore, the defendant's motion to dismiss the com- j>laint as to this cause of action was properly denied. When the cause was submitted to the jury, the court charged that the, plaintiff could recover for loss of the services of her daughter from her daughter's death to the time she would have arrived at the age of twenly-one years. The defendant asked the court to charge that the plaintiff could not recover damages for the death of the deceased. The court charged this, ' except so far as she loses her personal services. ' This qualification was error. The plaintiff could not recover any damages caused by the daughter's death. She could recover, as already stated, for loss of service during the period the daughter was ill, but such dam- 61 ages were damages not resulting from the death, but from the malpractice." Sorensen v. Balahan, 11 App. Div. 164, 165. The case of Green v. Hudson, River R. R. Co., 2 Abb. Ct. App. Dec. 277, decided that an action cannot be maintained by a husband for damages arising from the instantaneous killing of his wife by the negligence of the defendants. Leonard, J., in the course of his opinion (p. 282) says: " The subject was very fully and learnedly considered by Justice Bacon, when this case was before him at special term, in an opinion afterward adopted at the general term on appeal and now reported in 28 Barb. 9." The reason for the rule is expressed by Bacon, J., (28 Barb. 9, 21) as follows: " An action by a husband for the loss of his wife by the eareFaffi and negligent act of a third party, can oily be susfciii^ where some period intervenes between the time of the injury «M the time of dissolution, during which he could be said to have suffered the loss of her service and society, and incurred expense and underwent anxiety and distress off her account. Where death is the concomitant of the collision, and life departs at the instant the shock is received, no action for fess of service can be sustained, because there is no time during her life, when it can be said that the husband has lost the ser- vice and society of his wife in consequence of the injury com- jigkined of. This may be thought a narrow ground on which to place any right of recovery, but there is no other on which the common law rule can be overcome, which declares that the mere death of a human being cannot be complained of as a civil injury, to be compensated in damages." And the same Justice (p. 15) says : "It would savor somewhat more of judicial knight errantry, than of legal prudence, to attempt to unsettle what has been deemed at rest for more than two hundred and fifty years. ' ' In McGovern v. N, T. C. c& H. R., R. R. Co., 67 N. Y. 417, the court held that damages for loss of service may be in- cluded in the " peeunifiry injuries " and be recovered by the legal representative in the statutory action. Tlie statute makes no provision for such recovery, and the next of kin are not en - titled to recover such damage; if the parent be so entitled, 63 compliance with the statute, that "the damages recovered, , must be distributed by the plaintiff, as if they were nnbeqneathed assets" (C. C. P., § 1903), would seem to be pos- sible in those cases only where the parent is the sole survivor, and could not be maintained in all cases, on behalf of those who simply stood in loco parentis to the deceased child. However, the court (p. 424) said : "Assuming, as seems to have been held in Ford v. Monroe (20 Wend. 210), that a father can recover damages for the loss of service of his minor son, against a per- son who negligently caused his death, to be computed and ascer- tained from the time of his death nntil the time when the son, if living, would have attained his majority, the question arises whether, in an action brought by the father, as administrator, under the statute, the entire damages may be recovered includ- ing tlie loss of service when as in this ease the father elects to proceed for and claim his whole damages in the statutory action, and the recovery is for his exclusive benefit. ' ' We are inclined to the opinion that in such a case dam- ages for the loss of service may be included in the recovery as a part of the pecuniary loss to the next of kin of the deceased, re- sulting from his death, and that a recovery will bar another ac- tion for the same damages by the father as such. The point is certainly not free from difficulty, but this construction of the statute is, we think, permissible, and it is convenient, avoiding as it does the necessity which would otherwise exist of splitting up what is substantially a single claim, and bringing two actions for its recovery. We confine our opinion to the precise case presented, assuming, on the authority of Ford v. Monroe that the father has a right of action, independent of the statute, for loss of service. ' ' Seduction. — Seduction is " the act of a man in enticing a woman to commit unlawful sexual intercourse witlx him by means of persuasion, solicitation, ' promises, 'bribes, ' or other means, withont the employment of force." Black's Law Die. The seduced party can have no civil remedy against the seducer, because volenti iwnfit injwria. The parent, however or one standing in loco pwrenHs, may maintain an action for the seduction of his daughter under the fiction above mentioned. "e*- Theoet of the action and measure of damages. — The legal basis of the action is the injury to the right to command services ; but the measure of damages comprehends the injury to the dignity and reputation of the parent. That is, the dam- ages are measured not by the actual value of the services lost, but by the injury to the home, reputation and feelings of the parent. " The ground of the action has often been considered tech- nical, and the loss of service spoken of as a fiction, even before the courts ventured to place the action upon the mere right to claim the services ; tlfey frequently admitted the most trifling and valueless acts as suffieient. In the case of Clarh v. Fitch, 2 Wendell, 459, there was no proof of actual loss. And Martin v. Payne, 9 Johns. E. 387, was decided upon the ground that none were necessary. The only actual liability of {he father that appeared in the -former case, were for the ex- penses of the lying in, which have never been regarded as the foundation of the suit ; tliey are received in evidence only by way of enhancing the damages. It is apparent from a perusal of the modern cases, and elementary writers in England, upon this subject, that the old idea of loss of menial services, which lay at the foundation of the action, has gradually given way to more enlightened and refined views of the domestic relations : these are, that the services of the child are not alone regarded as of~valaie to -ttie parent. As one of the fruits of more culti- vated times, the value of the society and attentions of a virtu- ous and innocent daughter, is properly appreciated ; and the loss sustained by the parent from tiie corruption of her mind and the defilement of her person, by the guilty seducer, is con- sidered ground for damages, consistent even with the first prin- ciples of the action. The loss of these qualities, even in regard to menial services, would necessarily greatly diminish their value." Hewitt v. Prime, 21 "Wend. 79, 82. 61 ' ' Th a-nftm iripn law gave the father an action for the seduc- tion of liis daughter, but regarded it as an action for trespass for assaulting his servant, whereby he lost her services ; later, an action on the case was allowed, and it is now well settled that the action may be brought in either form. " The action was based upon the relation of master and servant, and not upon that of parent and child, and the measnre «f damages was such only as a master would recover for a dis- abling injury to his servant. The extent of the recovery has been enlarged by the courts from the necessity of the case, rather than from the principles which govern the action, until compensation is awarded to the parents as such, for the shame and mortification which that wrong brings upon him and his family. No action could be maintained by the father for the injury "iu his parental capacity, but in the struggle between sub- stantial justice to the parent and the precedents in actions for seduction, the courts have clung to the latter and striven to attain the former, until the anomaly has been produced of re- quiring the action to be prosecuted by the father for an injury inflicted upon him in his relation as master, and permitting a recovery in his relation as parent. ' ' XXI. Am. & Eng. Ene. of Law, 1009. Right to commaito seevices. — "It is now fully settled both in England and here, Maunder v. Vemm,, 1 Mood. & Malk. 323; Peake's K P. 55, 233; 2 Stark. Ev. 721; 9 Johns. E. 387; 2 Wendell, 459; 7 Carr. & Payne, 528, that acta of service by the daughter are not necessary ; it is enoawh if the parent has a right to command them, to sustain the action. If it were otherwise, says Littledale, J. in Maunder v. Yervn no action could be maintained for this injury in the higher ranks of life, where no actual services by the daughter are usual." Hewitt v. Prime, 21 Wend. 79, 81. Adult daughtee.— " It has frequently been decided that where the daughter- was more than twenty-one years of age there must exist some kind of service ; but the slightest acts 65 have been held to constitute the relation of master and serWht in such a case. In Bennett v. Alcdtt, 2 Term Eep. 166, the daughter was thirty years of age ; aud BuUer, Justice, held that even milking cows was sufficient. But where the daughter was over twenty-one, and in the service of another, as in PosUe- thwaite V. Pcvrkes, 3 Burr. 1878, the action is not maintainable. In Johnson v. M^Adam, cited by Topping in Dean v. PeeZ, Wilson, J., said that where the daughter was under age he; believed the action was maintainable, though she was not part of the father's family when she was seduced; but when she was of age, and no part of the father's family, he thought the action not maintainable." Martin v. Payne, 9 Johns. 387, 390. Seduction tjndek promise of maeeiage. — "§ 284. A person who, under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste characr ter, is punishable by imprisonment for not more than five yearSj or by a fine of not more than one thousand dollars, or by both. "§ 285. The subsequent intermarriage of the parties, or the lapse of two years after the commission of the offense before the finding of an indictment, is a bar to a prosecution for a vio- lation of the last section. " § 286. No conviction can be had for the offense specified in section 284, upon the testimony of the female seduced, un- supported by other evidence." ISf. Y. Penal Code. In ease of seduction under promise of marriage, the parent is entitled to maintain an action for the tort committed. While the sediieed party cannot maintain an action ex delicto on the ground that volenti non fit injv/ria, she is able to sue for hreach of contra^, in which action she practically recovers damages a» for a tort. MeASUBE of damages foe BEEACH of maeeiage OOlilTEACT. — In the case of Thorn v. Knapp, 42 N. Y. 474, which was an action to recover damages for a breach of promise to marry, unaccompanied by seduction, Enrl, Ch. J., said: " It is the policy of the law to encourage matrimony, and society has 66 an'&terest in contracts of. marriage both before and after they are consummated. A man who enters into a contract of marriage with improper motives, and then ruthlessly and un- justifiably breaks it off, does a wrong to the woman, and also, in a more remote sense, to society, and he needs to be punished in the interest of society, as well as the man who commits a tort under circumstances showing a bad heart. The rule of 'damages applicable to ordinary contracts would be wholly inadequate. ^ V ■!• I" T* ■!• ■•* T* ' ' The action for the breach of the contract of marriage, though in form of an action of assumpsit, is, in fact, and always has been since it was sustained at common law, in respect to this question of damages, really in the nature of an action for a tort. Damages in this action have never been limited to the simple rule governing actions upon simple contracts for the payment of money. This court asserted a different rule in the case of Johnson t. Jenkins, 24 N. Y. 252. In that case, which was an action like this, for a breach of promise to marry, the judge at the circuit had charged, that the action was of a class of cases for which the law allows what are called aggravated damages, that is damages beyond, and in no way measurea by, any proof of actual pecuniary loss or injury. Judge Allen said, in respect to this charge : ' By this, I understand that the jury was told, that in this class of actions, as in libel, slander, seduction, crimi- nal conversation, etc., they are at liberty to give what are termed punitive damages, as distinguished from compensatory damages ; ' . . . The learned judge also said : ' That damages in this class of cases may be enhanced by such facts and circumstances aj aggravated the injury itself, as adding to the indignity and contumely, increasing mental agony, and bringing public disgrace and consequent loss of reputation upon the injured party.' " In the case of Wdls v. Padgett, 8 Barb. 323, which was an action to recover damages for breach of promise to marry, accompanied by seduction, Mason, J., said: "There are two objections raised to allowing the seduction to aggravate the 67 damages in an action for a breacli of promise of marriage. The first is, it is said that the parties are in pari deUctoj and the second is, that the action for seduction is given to the parent, or to him who stands in loco parentis. The first objection, in my opinion, is nojt sound. In the first place, the female and her seducer do not stand upon equal grounds. She is the weaker party and the victim of his acts, and the seduction has been practiced upon her under the false color of a promise of mar- riage, which he never intended to perform. They are not equally guilty. . . . And the objection that the parent, or he who stands in loco parentis, has his action for the seduction, is equally untenable. The loss of service is the gist of the ac- tion, when brought by the parent. It is true that the loss of service may be well said to be almost a fiction in this action, when it is made the foundation of damages ; for the real sub- stance of the action is the debauching the child and depriving the parent of her society, and. the consequent dishonor and dis- tress wliich it brings to the parent and family. The child's loss of character, and dishonor and anguish, and distress of mind, do not constitute the basis of the parent's claim for damages. ' ' The action for breach of marriage promise is given to afford an indemnity to the misused party for the temporal loss which the party has sustained in not having the contract ful- filled; and this has always been held to embrace the injury to the feelings and affections, wounded pride, and the loss of mar- riage. Now it seems to me that all of these things are greatly ag- gravated, where seduction has been accomplished under the false color of a marriage promise, and that here is a proper field of damages in this action, which is untouched by the parent's ac- tion for seduction. ... It seems to me that here is a broad field for assessing damages, which the parent's action for seduction does not reach, and which the law will allow the jury- to occupj in assessing damages where the seduction has been ac- ^lislied through a fraudulent promise of marriage. ' ' Criminal conveesation. — A husband has a right of action against one who commits adultery with his wife. This action is 68 nuuntainable on the theory of loss of congoriium, not of services. Loss of services, however, may be proved in aggravation of damages. In snch case, condonation does not excnse the wrong committed by the seducer. The wife may also maintain an action against one who wrongfully entices away her husband, and alienates his affec- tions. She had the right at common law, but, owing to dis- ability caused by coverture, could not enforce her right unless her husband joined in the suit, which he was not likely to do, as by such act he would confess his own wrong. "It is well settled that a husband can maintain an action against a third person for enticing away his wife and depriving him of her comfort, aid and society. {Sutcheson v. Peck, 5 Johns. 196; Barnes v. AUen, 1 Abb. Ct. Ap. Dec. 111.) The basis of the action is the loss of consortium, or the right of the husband to the conjugal society of his wife. It is not neces- sary that there should be proof of any pecuniary loss in order to sustain the action. (^Hermcmce v. Jaines, 32 How. 142 ; Rine- hart V. Bills, 82 Mo. 534.) Loss of services is not essential, but is merely matter of aggravation, and need not be alleged or proved. {Bigaouette v. Paulet, 134 Mass. 125.) ' ' According to the following cases a wife can maintain an action in her own name and for her own benefit against one ^\ ho entices her husband from her, alienates his affection and de- prives her of his society: Jo'ynes__v^ Jaynes, 89 Hun. 40; Breiman v. Paasch, 7 Abb. N. C. 249 ; Baker v. Baker, 16 id. 293; Warrier v. MiUer, 17 id. 221; ChurchUl v. Lewis, id. 226 ; SlTnmons v. Simmons, 21 id. 469. "The absence of strictly common -law precedents is not surprising, because the wife could not bring an action alone, owing to the disability caused by coverture, and the husband would not be apt to sue, as by that act he would confess that he had done wrong in leaving his wife. ******** " If, however, the right was hers but, owing to the legal fiction of the unity of husband and wife, she could not assert it, 69 she may now have a remedy Under section 450 of the\Code." BenneU v. Bennett, 116 JS". Y. 584, 587. LIBEL AND SLANDEE. Eight to keputation. — " Eeputation and honor are no less precious to good men than bodily safety and freedom. In some cases tliey may be dearer than life itself. Thus it is need- ful for the jeace and well-being of a civilized commonwealth that the law should protect the reputation as well as the person of the citizen." Pollock on Torts, 204. Violation of the eight. — In defamation, the wrongful act is the violation of the right which an individual has to rep- utation, and may be effected by speech, by writing, or their equivalents. Slander and libel defined. — When defamation is ac- complished by speech or its equivalent, we call it slander ; when it is accomplished by writing or its equivalent, we call it libel. The former is a civil wrong only ; the latter is a criminal, as well as a civil, wrong. \ Statutokt definition of libel. — " A malicious public a- tion, by writing, printing, picture, effigy, sign or ot herwise than by m ere speech , whieh_exposes any living person, or the mem- ory of any person deceased, to hatr ed, conte mpt, ridicule or obloquy, or which causes, or tends to cause any person to be shunned or avoided, or which has a tendency to injure any per- son, corporation or association of persons, in his or their busi- ness or occupation, is a libel." N. T. Penal Code, § 242. Essential elements in defamation.— In general, we may say that the essential elements in tlie wrong to reputation are: 1. Defamation, i. e., oral or written language wh ich tends to bring one into hatred, disgrace, or ridicule, or to injure himi in his vocation. 70 2. Publication, i. e. , making the defamatory matter known to a third person. 3. Damage, which must be alleged and proTed in such cases ae are Tiot actionable ^e?" se. _ The law distinguishes between libel and slandee. — " A distinction has long been known and recognized between verbal and written slander. "Words, when committed to wri- , ting and published, are considered as libelous, which if only < spoken, would not subject the person speaking to any action. Perhaps it is to be regretted that a distinction was ever made between oral and written slander ; and if it was a new question, no distinction would now be made. The reasons which have been given for the distinction, have been questioned both by writers and judges of eminence. It has been made, however, and become a part of the law, and as such we must receive it. There can be no question, but that a slander written and pub- lished, eviuces a more deliberate intention to injure, is calcu- lated more extensively to circulate the accusation, and to provoke the person accused, to take the means of redress iu his own hands, and thus commit a breach of the peace, than mere oral slander which is spoken aid soon forgotten." Colby v. Reynolds, 6 Yt. 493. Eephtation in criminal and in civil actions. — " A,,^ criminal libel is prosecuted in the name of the People, not for the purpose of redressing an injury done to an individual, but is so prosecuted and punished as a crime for the reason that it t ends to provoke animosity and violence and to disturb the pub- lic peace and repose; and certainly ii will not be for a moment contended that the threatened danger to the public peace is not as great when the person libelled is a bad man, as when he is a good man. In a civil action brought by an individual to obtain satisfaction for an injury to his reputation, caused by the pub- lication of a libej, the bad reputation of the complainant becomes material as affecting the measure of damages, while in a criminal . action brought in the name of the People,' the individual libelled^ . 71 SO far as personal redress and satisfaction are concerned, is not considered." People v. 8tohes^Z0 Abb, N. 0. 200, 210. Cases actionable, and not actionable, pee se. — "In any given case, the fact that the words employed by the defend- ant have perceptibly injured the plaintiff's reputation may be either I. Presumed from the nature of the words themselves ; or, II. Proved by evidence of their consequences. — ' I. It will be presumed from the nature of the words themselves : (a) If the words, being written and published or printed and published, are in 'any way disparaging to the plaintiff, or tend to bring him into ridicule and contempt. ^ (J) If the words, being spoken, (1.) Charge the plaintiff with the commission of somfr indictable offense; (2. ) Impute to the plaintiff a contagious disorder tend- ing to exclude him from society ; — - (3.) Are spoken of the plaintiff in the way of his- profession or trade ; or disparage him in an office of public trust. In all these cases the words are said to be actionable per se, because on the face of them they clearly must have injured the plaintiff's reputation. II. But in all other cases of spoken words, the fact that the plaintiff's reputation has been injured thereby, must be proved at the trial by evidence of the consequences that directly resulted from their utterance. Such evidence is called " Evidence of special damage,' as distinguished from that general damage which the law assumes, without express proof, to follow from the employment of words actionable per se. ' ' Odgers on Libel and Slander, 2, Some instances of special damage. — In those cases where special damage must be alleged and proved in order to entitle 72 iiie plaiatLff to recover, the law requires proof of some definite, temporal loss, or the loss of some material advantage. "As to what constitutes special damages, Starkie mentions ike loss of a marriage ; loss of hospitable gratuitous entertain- ment ; preventing a servant or bailiff from getting a place ; the loss of customers by a tradesman ; and says that, in . general, whenever a person is prevented by the slander from receiving that which would otherwise be conferred upon him, though gratuitously, it is sufficient. 1 Starkie, Sland. & L. 196, 202; Cooke, Defam. 22-24. In Olmsted v. Miller, 1 Wend. 506, it was held that the refusal of civil entertainment at a public house was sufficient special damage. So in Williams v. SiU, 19 Wend. 305, was the fact that the plaintiff was turned away from the house of her uncle, and charged not to return until she had cleared up her character. So, in Beach v. Ranney, 2 Hill, 309, was the circumstance that persons who had been in the habit of doing so, refused longer to provide fuel, clothing, etc. 2 Starkie, Ev. 872, 873. These instances are sufficient to illustrate the kind of special damage that must result from defamatory words not otherwise actionable to make them so." Terwilliger v. Wands, 17 N. T. 54, 60. Special damage in cases actionable pek se. — "Where special ' damage is not essential to the action, it may still of course be proved at the trial to aggravate the damages. But to entitle such evidence to be given^ the special damage relied on must be stated on the record with the same particularity as is required where the words are actionable only by reason of such special damage. The defendant is entitled to know beforehand what case he has to meet. Thus, in an action by a trader for words spoken of him in the way of his trade, evidence of a, general loss of business is always admissible ; for this is not special damage. But the plaintiff cannot be asked whether par- jticular persons have not ceased to deal with him, tinlees the loss |of their special custom is set out in the pleadings as special I damage. It is clearly right that the defendant should be fur- nished with their names before the trial. 73 '* But though the special damage must be laid as explicitly whether the words be actionable or not, it seems that in other respects the law is not quite so strict as to what constitutes special damage in the first case as in the second. Tbi^s, where the words are not actionable per se, . . . mental distress, illness, expulsion from a religious society, etc. , do not constitute special damage. But where the words are actionable jper se, the jury may take such matters into their consid- eration in according damages." Odgers on Libel & Slander, 318. ' ' It would be highly impolitic to hold all language, wound- ing the feelings and affecting unfavorably the health and ability to labor, of another, a ground of action ; for that would, be to make the right of acti6n depend often upon whether the sensf- bilities of a person spoken of are easily excited or otherwise; his strength of mind to disregard abusive, insulting remarks concerning him ; and his physical strength and ability to bear them. Words which would make hardly an impression on most persons, and would be thought by them, t,nd should be by all, undeserving of notice, might be exceedingly painful to some, occasioning sickness and an interruption of ability to attend to-their ordinary avocations. There must be some limit to liability for" words not actionable jjer se, both as to the words and the kind of damages ; and a clear and wise one has been fixed by the law. The words mast be defamatory in their nature; and must in fact disparage the character; and this dis- paragement must be evidenced by some positive loss arising therefrom directly and legitimately as a fair and natural result. "It is true that this element of the action for slander in the case of words not actionable of themselves — that the special damages must flow from impaired reputation — has been over- looked in several modern cases, and loss of health and conse- quent incapacity to attend to business held sufficient special damage {Bradtv. Tmosley, 13 Wend. 263 ; Fullerv. Fenner, 16 Barb. 333) ; but these cases are a departure from principle and 74 should not be followed." TenoiUiger v. Wanda, 17 N. T. 64, 60, 63. Imputation of TmoHASTiTT made actionable pek se bt STATtiTE. — Imputing uncliastity to a woman was not actionable, at common law, unless special damage was alleged and proved ;( but to-day, in the state of New York, " In an action of slander, l| brought by a woman, for words imputing unchastity to her, it is not necessary to allege or prove special damages." Code Civ. Pro., §1906. I .; MeBE EEPETITION DOES NOT CONSTITUTE SPECIAL DAMAGE. "It is settled, however, that no cause of action is afforded by special damage arising merely from the voluntary repetition of spoken words by some hearer who was not under a legal or moral duty to repeat them. Such a consequence is deemed too remote. But if the first speakCT authorized the repetition of what he said, or (it seems) spoke to or in the hearing of some one who in the performance of a legal, oflBcial, or moral duty ought to repeat it, he will be liable for the consequences."- Pollock on Torts, 208. " Where words are spoken to one person and he repeats them to another, in consequence of which the party of whom they are spoken sustains damages, the repetition is, as a general rule, a wrongful act, rendering the person repeating them liable" in like manner as if he alone had uttered them. The special damages in such a case are not a natural, legal consequence of the first speaking of the words, but of the wrongful act of re- peating them, and would not have occurred but for the repeti- tion ; and the party who repeats them is alone liable for the damages. " . . . There are several cases in which it is sug- gested that circumstances may exist which vrill justify the repe- tition of slanderous words, and that when repeated under such circumstances, and damages ensue, the first speaker may be liable in like manner as he would be if the injury had arisen from the words without the repetition. ( Waa-d v. Weeks, 7 Bing. 75 211 ; Keenholts v. Becker^, 3 Denioj 346 ; Olmsted v. Browne ^ 12 Barb. 657; McPherson v. Daniels, 10 Barn. & Cress. 263.) Occasions may doubtless occur wJiere the communication of slanderous words by a person who heard them will be innocent ; and it is certainly reasonable that when repeated on such an occasion and damages result, the first speaker should be held responsible for the damages, as flowing directly and naturally from his own wrong." Terwilliger \. Wands, 17 N. Y. Si, 67. Implied malice or " malice in law. " — " It is commonly said that defamation to be actionable must be malicious, and the old form of pleading added ' n.aliciously ' to ' falsely. ' "What- ever may have been the origin or the original meaning of this language, malice in the modern law signifies neither more nor less, in this connexion, than the absence of just cause or excuse ; and to say that tlid law implies malice from the publication of matter calculated to convey an actionable imputation is only to say in an artificial form that the person who so publishes is re- sponsible for the natural consequences of his act. ' ' Pollock on Torts, 214. Language of the publication. — The language, alleged to be libellous, is to be given its ordinary import and meaning, unless an explanation accompanies the use of the words, which gives them a different meaning. That the alleged libellous language is capable of the meaning ascribed to it, is a question of law for the court ; if it is also capable of another meaning, the jury must decide which meaning was conveyed under the eircurastances. ' ' Both cases [referring to Cooper v. Greeley, 1 Denio, 358, and Sione v. Cooper, 2 Denio, 293] were decided upon the principle that the language is to be construed fairly and natur- ally. It is not enough that a critic or a malignant may torture the expressions into a charge of a criminal or disgraceful act. Nor is it enough, on the other band, that a possible and far-fetched construction may find an inoffensive meaning in the language. 7B The test is whether, to the mind of an intelligent man, the tenor of the article and the language used, naturally import a criminal or disgraeefttl charge. ' ' MoTdyn Life Ins. Co., 45 Md. 198. MaUCE AMD WAMT OF PROBABLE CAUSE MUST CONOUB. " To maintain this action it was incumbent on the plaintiff to prove that he had been sued by the defendant, as alleged, maliciously and without probable cause ; for if there was probable cause for such suit, although, it was maliciously commenced, the action could not be sustained. Want of probable cause and malice must concur." Besson v. Southa/rd, 10 N. T. 236. Pbobable oatjse a question of law. Malice a question OF FACT. — " The question of malice in this action is for the jury. The want of probable cause is independent of malicious motive, and cannot be inferred,' as a necessary consequence, from any degree of malice which may be shown. " In the case of a private suit, probable cause may consist of such facts and circumstances as lead to the inference that the party was actuated by an honest and rieasonable conviction of the /justice of the suit. This question is composed of law and fact ; it being the province of the jury to determine whether th^ circumstances alleged are true or not, and of the court ta determine whether they amount to probable cause. When the i^atter of fact and matter of law, of which the probable cause eonsists, are so intimately blended together as not to be easily /snsceptible of separate decision, the judge is warranted in leaving^ the question to the jury ; instructing them in the principles and rules of law by which they are to be governed in finding a ver- dict, and those instructions "the jury are bound to follow. Whether the circumstances alleged to show probable cause, or the contrary, are true and existed, is a matter of fact; but whether, supposing them true, they amount to probable cause, is a question of law. " What is meant by the expression, that' probable cause ia a mixed question of law and fact, and when if is proper to sub- 100 mifc it to the jury to pass upon, is correctly explained in Masten V. Dffyo, 2 Wend. 424. If the facts which are adduced as proof of a want of probable cause are controverted, if conflicting testimony is to be weighed, or if the credibility of witnesses is to be passed upon, the question of probable cause should goto tlie jury, with proper instructions-as-to-the-law-. But where there is ncTdispute about facts, it is the duty of the court, on the trial, to apply the law to them." Besson v. Southard, 10 N". T. 236, 239. ' ' The existence of malice is always a question exclusively for the jury. It must be found by them, or the action cannot be sustained. Hence it must always be submitted to them to find whether it existed. The court has no right to find it, nor to instruct the jury that they may return a verdict for the plaintiflE without it. Even the inference of malice from the want of probable cause is one which the jury alone can draw." Stewa/rt v. Sonneborn, 98 U. S. 187. Abuse of peooess. — " There is no doubt that an action lies for the malicious abuse of lawful process, civil or criminal. It is to be assumed in such a case, that the process was lawfully issued for a just cause, and is valid in form, and that an arrest or other proceeding upon the process was justifiable and proper in its inception. But the grievances to be redressed arise in consequence of subsequent proceedings. For example, if after the arrest, upon civil or criminal process, the person arrested is subjected to unwarrantable insults and indignities, is treated cruelly, is deprived o^^roper food, or is otherwise treated with oppression and undue hardship he has a remedy by an action against the ofiicer, and against others who unite with tlie oflScer in doing the wrong." Wood v. Graves, 144 Mass. 366. Termination not a condition peecedent. — "The action here under review is not one for false imprisonment, malicious prosecution, or the special action authorized by section J900 of the Code of Civil Procedure, although it possesses some of the features of each of those actions; it is one I think for an abuse 101 of process, something rarely brought to the attention of the courts, except in connection with actions for false imprisonment or malicious prosecution, but for which a separate action will lie, . . . ******** "The leading English case upon the subject is that of Grainier v. BUI, 4 Bing. JST. C. 212, where the owner of a vessel was arrested on civil process, and the officer, acting under the direction of the plaintiffs in the suit, used the process to compel the defendant therein to give up his ship register, to •whicli they had no right. He was held entitled to recover dam- ages, not for maliciously putting the process in force, but for maliciously abusing it to effect an object not within its proper scope. " It is noti necessary, as in cases of malicious prosecution, to allege or prove that the proceeding complained of has been terminated." Dishmo v. Wadleigk, 15 App. Div. 205, 209, 210. Abuse of pkooess distinguished from malicious peosecu- TioN. — " Though there is a resemblance betwixt an action for the malicious prosecution of a criminal charge, and an action for a malicious arrest or holding to excessive bail in a suit, the cases are not entirely parallel. In a criminal prosecution want of probable cause iriiist be combined with malice ; but in a civil suit the existence of a cause of action is not a defense to a suit for' an excessive use of the process. . . . The gist of the action in one case is the origina,tion of a malicious and ground- less prosecution, which ipso facto put the party in peril ; in the other, it is not the origination of an action, but an abuse of the process consequent on it. ' ' Herman v. Brookerhoof, 8 Watts, 240. ' ' There is a distinction between a malicious use and a ma- licious abuse of legal process. An abuse is where the party em- ploys it for some unlawful object, not the purpose which it is 102 ihtesfded by the law to effect ; in other words a perversion of it. jHius, if a man is arrested^r or his goods seized in order to extort money from him, even though it be to pay a jnst claim other than that in suit, or to compel him to give up possession of a deed or other thing of value, not the legal object of the process, it is settled that in an action for such malicious abuse it is not necessary to prove that the action in which the process issued has been determined, or to aver that it was sued out without reasonable or probable cause : Orainer v. Hill, 4 Bing. N. C. 212. It is evident that when such a wrong has been perpe- trated, it is entirely immaterial whether the proceeding itself was baseless or otherwise. "On tlie other hand, legal process, civil or criminal, may be maliciously used so as to give rise to a cause of action where no object is contemplated to be gained by it other than its proper effect and execution. As every man has a legal power to prose- cute his claims in a court of law and justice, no matter by what motives of malice he may be actuated in doing so, it is neces- sary in this class of cases to aver and prove that he has acted not only maliciously, but without reasonable or probable cause. It is clearly settled also, that the proceeding must be deter- mined finally before any action lies for the injury ; because, as it is said in Arundell v. Tregono, Telv. 117, the plaintiff will clear himself too soon, viz., before the fact tried, which will be inconvenient; besides, the two determinations might be con- trary and inconsistent." Mayer v. Walter, 64 Pa. St. 283. Malicious pkosecution in civil actions. — Actions for malicious prosecution are usually brought for wrongful criminal prosecutions, and are not regarded with favor in cases of wrong- ful civil actions, on the ground that the payment of costs by . the unsuccessful plaintiff is suflScient indemnity to the defendant in such actions. " The authorities are in conflict as to whether a petition states a cause of action which merely alleges that a civil action, brought and prosecuted maliciously and without probable cause, has been terminated in favor of the defendant ; many of the 108 aiithorities maintaining that no cause of action exists unless au^ civil process be accompanied by arrest of the person or seizure of the property, and that the plaintiff in such original action, in contemplation of law, is sufficiently punished by the payment of costs. . . . It is difficult to see why the right of the plain- tiff, who, as defendant, has been sued in a civil action mali- ciously and without probable cause, and who has been put to great expense in consequence thereof, should be altered or at all affected by the incident of his property having been attached or his person seized ; . . . and it is clear that the recovery of costs would not, under our practice, reimburse him for the attorney's fees, something which and other incidental expenses he does recover under the English practice. ' ' Smith v. Burrua, 106 Mo. 94. " In Savile v. Roberts, 1 Ld. Raym. 374, Lord Holt laid down the proposition that any one of three sorts of damage would support an action for malicious prosecution, namely, damage to a man's fame, to his person, or to his property. That a prosecution for a crime, which involves the first sort of damage, the bringing of a civil suit with arrest of the person, which involves the second, and the bringing of a civil suit with attachment of property, which involves the third, are actionable if induced by malice and without reasonable cause, is universa;lly admitted. But where a civil suit is unaccompanied by arrest of the defendant's person, or attachment of his property, it has often, perhaps generally, been held that the law must regard the costs which the defendant recovers ~as~a' sufficient recom- pense, and that he can bring no action for malicious prosecuT- tion. ... "It is generally admitted that some .action of this nature lay at common law. But since the statute 'of Marlbridge- (52 Hen. III.), which allowed costs to successful defendants pro. falso damwre, no such action has been sustained by the English courts. Those cdsts apparently include ' the attorney's charges for preparing the case for trial in all its parts, the fees of the witnesses and the court officials, and even the hondrarvum of the barrister who conducted the case in court. ' 21 Am. Law Eeg. N. S. StO. In this coaQtry costs are much more spariagly allowed, and are often far from a recompense for the damage sustained. It is on this ground that many of the American courts have allowed the action. Their conclusion certaimly seems logical, and in accord with the general principle on which the action for malicious prosecution is based. Manifestly, in the expense to which he is put the defendant suffers damage of a sort covered by Lord Holt's analysis ; and if that damage, re- sulting as ?, natural consequence of the plaintiff's malicious act, exceeds the amount of costs given under a system which makes no attempt at complete compensation, the defendant should be allowed to make good the loss by another action. The main argument against allowing it, that it would encourage intermina- ble litigation, hardly seems conclusive. See, for a full discus- sion of the subject, 21 Am. Law Eeg. N. S., 281, 353." IX. Harvard Law Review, 538. " A party who brings an action for malicious prosecution against a plaintiff who has been unsuccessful in a civil action, should not be" permitted to recover without very clear and satis- factory proof of all the fundamental facts constituting his case. Such actions should not be encouraged. " The costs awarded to a successful defendant in a civil action are the indemnity which the law gives him for a ground- less prosecution. Public policy requires that parties may freely enter the courts to settle their grievances, and that they may dd this without imminent exposure to a suit for damages in case of an adverse decision by judge or jury. " Ferguson v. Arnow, 142 ]Sr. Y. 680, 583. " In this country the authorities are not agreed upon the doctrine governing such actions ; as may be seen by reference to the cases collated in the American and English Encyclop. of Law (Vol. 14, p. 32). But I am prepared to assume that there may be satisfactory authority for holding that where a party has been subjected to some special, or added, grievance, as by an interference with his person, or property, in a civil action brought without probable cause, he may maintain a subsequent action to recover any legal damage, which he averg, and is able 105 to show, to have been occasioned to him. . . . The action generally is not to be viewed with any favor; for, in theory of law, the costs awarded by the statute to the successful defendant are an adequate compensation to him for all damages." Willard V. Holmes, 142^ IST. T. 492, 495. Distinction between false imprisonment and malicious PROSECUTION. ^In false^ imprisonment, the gist of the action is unlawful detention. More must be pro'ved in an action for malicious prosecution. In an action for false imprisonment, tlie plaintiff need not establish malice or want of probable cause. These elements may affect exemplary damages, but not the right of action. » "The distinction between false imprisonment and malicious prosecution is weH^illiistrated' by the case where, parties being before a magistrate, one makes a charge against another, where- ^urpon the magistrate orders the person charged to be taken into custody and detained until the matter can be investigated . The party making the charge is not liable to an action for false im- prisonment, because he does not set a ministerial officer in_ motion, but a judicial officer. The opinion and the judgment of a judicial officer are interposed between the charge and the imprisonment." Atistm v. DowUng, L. R. 5 C. P. 540. ' ' An action for malicious prosecution can only be supported for the malicious prosecution of some legal proceeding, before some judicial officer or tribunal. If the proceedings commenced are extra-judicial, the remedy is trespass, and not an action on the case for malicious prosecution." Turpm v. Remy, 3 Black. 210. TRESPASS. Duty regarding property. — One of the three principal duties with which the law of torts is concerned, is the duty to respect the property of others. The common law recognized this duty as absolute, but based its remedies for violation upon possession rather than ownership. 166 Common- LAW eights and remedies possessoey. — At^com- mon law, "the forms of action brought not ownership but pos- session to the front in accordance with a habit of thought which, strange as it may now seem to us, found the utmost difficulty in conceiving rights of property as having full existence or being capable of transfer and succession unless in close connejdon with the physical control of something which could be passed from hand to hand, or at least a part of it delivered in the name of the whole. An owner in possession was protected against dis- turbance,, but the rights of an owner out of possession were ob- scure and weak. . . . An owner who had neither posses- sion nor the immediate right to possession could redress himself by a special action on the case, which did not acquire any tech- nical name." Pollock on Torts, 275. ^ Teespass defined. — "Trespass, in its strict and technical sense, is a vyrongfjd entry upon or taking of real or personial property, gi a corporeal and tomgMe nature." Hilliard on Torts, II., 71. ' ' Trespass, in its largest and most extensive sense, signifies any transgression or offense against the law of nature, of societ}', or of the country in which we live ; whether it relates to a man's person, or his property. Therefore beating another is a trespass; for which . . . an action of trespass -yi et armis in assault and battery will lie ; taking or detaining a man's goods are respectively trespasses ; for which an action of tres- pass vi et armis, or on the case in trover and eon version is given by the law : . . . and, in general, any misfeasance, or act of one man whereby another is injuriously treated or damnified, is a transgression or trespass in its largest sense ; for which whenever the act itself is directly and immediately in- jurious to the person or property of another, and therefore necessarily accompanied with some force, an action of trespass vi et armis will lie; but, if the injury is only consequential, a special action of trespass on the case may be brought. ' 'But in the limited and confined sense ... it signi- fies no more than an entry on another man's ground without a 107 lawful authority, and doing some damage, however inconsidera- ble, to his real property. For the right of meum and tuum, or property in lands, being once established, it follows as a nec- essary consequence that this right must be exclusive ; that is, Jthattheowner may, retain to himself the sole use and occnpa- J;ion of his soil; every entry therefore thereon, without the owner's leave, and especially if contrary to his express order, is a trespass or transgression." 3 Blackstone Com. 208. "Trespass may be committed by various kinds of acts, of which the most obvious are entry on another's land (trespass quare dausumf regit), and taking another's goods (trespass de bonis asportatii). Notwithstanding that trespasses punishable in the king's court were s^id to be punishable as a breach of the king's peace, neither the use of force, nor the breaking of an inclosure or transgression of a visible boundary, nor even an unlawful intention, is necessary to constitute an actionable tres- pass. It is likewise immaterial, in strictness of law, whether there be any actual damage or not. ' Every invasion of private property, be it ever so minute, is a trespass. ' ' ' Pollock on Torts, 280. Teespass upon land. — " To maintain trespass quare clau- sum fregit, the plaintiff must have the actual or constructive possession of the premises. The gist of the action is the injury to the possession. If the premises are occupied, ,the^ action must be brought by the party in possession ; if unoccupied, by the party having the title and the right to the possession. The owner cannot maintain the action, where the laud is in the occu- pancy of his tenant. The trespass is a disturbance of the ten- ant's possession, and he alone can bring the action." SalUgcm V. Chicago & R. I. R. Go., 15 111. 558. CoNSTKUOTivE POSSESSION. ^Action of trcspass, alleged to have been committed on lots 107 and 108, in a patent of land known as " Glenn's patent." " Only a small portion of each Tot was cleared, and the plaintiff had occupied and cultivated the cleared portions for 108 manj years ; the balance, the larger part of each lot, was unin- closed woodland. It was upon this part that the alleged tres- passes were committed. As the plaintiff was not in the actual possession of the uninclosed woodland, he could recover only by showing a valid title or constructive possession. To show a valid title, he should have proved a conveyance to him sufficient to vest in him such a title. To show constructive possession, without a valid title, he should have proved thai he claimed title to the whole lot under a written instrument which purported to give him title to the whole, and was, therefore, sufficient to give him color of title to the whole, and that he was in the actual possession of a part." EdAJoa/rds v. Woye8,&5 IS. T. 125, 126, The enclosure. — "Every entry upon land in the occupa- tion or possession of another constitutes a trespass, in respect of which an action for damages is maintainable, unless the act can be justified. If a man's land is not surrounded by an actual fence, the law encircles it with an imaginary enclosure, to pass which is to break and enter his close. The mere act of break- ing through this imaginary boundary constitutes a cause of action, as being a violation of the right of prof erty, although no actual damage may, be done." Addison on Torts, 360. Justifiable entry. — " An entry upon land, or a taking of goods, is justifiable when effected either (1) by license or con- sent of the party, or (2) by license of the law ; a license being a mere permission to do what would otherwise be unlawful, and not a property right. The term ' license or consent of the party,' as here used, has reference to cases in which there is nothing beyond an express consent, either in answer to a re- quest for permission, or by specific or general invitation by "the possessor ; as e. g. in the case of a shopkeeper. . . . The term ' license of the law ' has reference to cases in which a per- mission is given regardless of the will of the owner or occupant, and includes all other cases in which the entry or taking posses- sion was lawful." Bigelow on Torts, 6th ed., 220. " The right to land is exchisive ; and every entry thereob, 109 without the owner's leave, or the license or authority of law, is a trespass. (3 Bl. Com. 209; 18 John. 385.) There is a variety of cases where an authority to enter is given by law ; as to execute legal process ; to distrain for rent ; to a landlord or reversioner, to see that his tenant does no waste, and keeps the premises in repair according to his covenant or promise ; to a creditor, to demand money payable there ; or to a person enter- ing an inn for the purpose of getting refreshment there. (3 Black. Com. 212; 1 Cowen's Tr. 411.) In some cases, a license will be implied ; as if a man make a lease, reserving the trees, he has a right to enter and show them to the purchaser. (10 Co. 46.) Where the owner of the soil sells the chattel being on his land. As if he ' sell a tree, a crop, a horse, or a fanning mill,, which remain within his close ; he at the same time passes to the vendee, as incident to such sale, a right to go upon the premises and take away the subject of his purchase, without being adjudged a trespasser. (1 Cowen's Tr. 367; Bac. Abr. Trespass F,; 11 East, 366; 2 Eoll. Abr. 567 m. n. 1.) . . . In some cases, the motive will excuse the entry. If J. jS. go into the close of J. N. to succor the beast of J. N., the life of which is in danger, an action of trespass will not lie ; because, as the loss of J." N., if the beast had died, would have been irremediable, the doing of this is lawful. But if J. S. go into the close of J. N. to prevent the beast of J. N. from being stolen, or to prevent his corn from, being consumed by hogs, or spoiled, the action of trespass lies; for the loss, if either of those things had happened, would not have been irremediable. (Bac. Abr. Trespass F.) L:And if a stranger chase the beast of A. , which is damage feasant therein, out of the close of B. , trespass will lie ; for by doing "this, although it seem to Ija^or^ his benefit, B. is deprived of his right to distrain tlie beiij,st. (Bro. Tresp. pi. 421; Keilw. 46, 13.) " In some cases the entry will be excused by necessity. As if a public highway is impassable, a traveler may go over the adjoining land. (2 Show. 28; Lev. 234; 1 Ld. Rayiu. 725.) So if a man who is assaulted, and in danger of his life, run through the close of another, trespass will not lie, be- 110 cause it is necessary for the preservation of his life. (Year Book, 37 H. 6, 37, pi. 26.) If my tree be blown down and fall on the land of my neighbor, I may go on and take it away. (Bro. Tres. pi. 213.) And the same rule prcTails where fmit falls on the land of another. {Miller v. Fawdry, Latch, 120.) But if the owner of a tree cut the loppings so that they fall on another's land, he cannot be excused for entering to take them away, on the ground of necessity, because he might have pre- vented it. (Bac. Abr. Trespass F.) . . . But it is well settled that where there is neither an express nor an implied license, nor any such legal excuse as is above stated ; a man has no right to enter upon the land of another for the purpose of taking away a chattel being there, which belongs to the former. The mere fact that the plaintiff owns the chattel, gives him no authority to go upon the land of another to get it. ' ' Newkwle v. Sailer, 9 Barb. 652, 654. Not an action to try title. — "At common law it is not properly an action to try titles, and the question of title does not necessarily arise. It may, however, and often does, where the real ownership is in dispute, and it becomes material to show in whom the rightful possession is. . . . But where the matter is not regulated by statute the decision of an action of trespass settles nothing in regard to the title beyond the action tried." Chandler v. Walker, 21 N. H. 282. "This action was originally brought by the plaintifE's tes- tator, . . . , to recover damages in the sum of $55 for an alleged trespass by the defendant upon the plaintiff's land. . . . The defendant made no claim of title to any part of the land which the plaintiff alleged that he owned. The general denial in the answer put in issue only the fact of plaintiff's possession and a wrongful entry by the defendant. It did, not necessarily raise any issue with respect to the title to land. The action involved no question save that which the or- dinary action of trespass always involves, namely, an injury to the plaintiff's possession. . . . A general denial to the com- plaint which avers possession or ownership or both in the plain- Ill tiff, and a wrongful entry by the defendant does not necessarily put the plaintiff to proof of title or require such proof from the defendant. An action based upon such pleadings is generally possessory in its nature, and may be tried and determined irre- spective of any question of title." La Rue v. Sziith, 153 N. T. 428, 429. Trespass ab initio. — " It was decided in The Six Carpen- ters' Case, 4 Co. 290, that where an authority to enter upon the premises of another is given iy law, and it is subsequently abused, the party becomes a trespasser ah initial but where such authority or license is given hy the pa/rty, and it is subse- quently abused, the party guilty of the abuse may be punished, but he is not a trespasser; and the reason of the difference is said to be, that in case of a license by law, the subsequent tort- ious act shows quo amimo he entered ; and having-entered with an intent to abuse the authority given by law, the entry is un- lawful ; but where the authority or license is given by the party, he cannot punish for that which was done by his own authority. Whether this is not a distinction without a difference of principle, it is not necessary to inquire. A better reason is given for it in Bacon's Abr. tit. Trespass, B. Where the law has given an authority, it is reasonable that it should make void every thing done by the abuse of that authority, and leave the abuser as if he had done everything without authority. But where a man, who was under no necessity to giye an authority, does so, and the person receiving the authority abuses it, there is no reason why the law should interpose to make void everything done by such abuse, because it was the man's folly to trust another with an authority who was not fit to be trusted therewith.-' ' AUen v. Orofoot, 5 Wend. 606, 509. Waste. — Waste is an injury which tends to destroy or lessen the value of the future estate, and is committed or per- mitted by the owner of the present estate. It differs from tres- pass in its being committed or permitted by the person actually or constructively in possession, while trespass is committed by strangers and is an injury to the possession itself. 112 "Section 1665 of the Code of Civil Procedure provideB that: " ' A person, seized of an estate in remainder or reversion, may maintain an action founded upon an injury done to the inheritance, notwithstanding an intervening estate for life or for years. ' " The statute provided that ' A person, seized of an estate in remainder or reversion, may maintain an action of waste or trespass for an injury done to the inheritance, notwithstanding an intervening estate for life or years.' (1 E. S. 759, § 8.) ; ' ' Under the Code, the words ' of waste or trespass for ' are omitted, and the words 'founded upon' are substituted in their place. The words omitted, as used in the statute, indi- cated the nature of the action that might be maintained. The ' leaving of them out of the Code would seem to indicate an iur tention not to restrict the party injured to such actions, but to give him the right to maintain an action founded upon an injury to his inheritance." Thompson v. M. R. Co.^ 130 1!^. Y. 360, 364. Trespass to goods. — Trespass to personal property is also an injury to the right of possession, and intention is immaterial. ' ' Trespass to goods may be committed by taking possession of them, or by any other act ' in itself immediately injurious ' to the goods in respect of the possessor's interest, as by killing, beating, or chastising animals, or defacing a work of art. Wliere the possession is changed the trespass is an asportati^ [de bonis asporiatis], . . . and may amount to the offense of theft. Other trespasses to goods may be criminal offenses under the head of malicioudi^ury to property." (Pollock on Torts, 282.) CONYEESION. Definkd. — "Conversion is defined to bean unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights. ' ' Laverty v. Sfneihen, 68 N. Y. 522, 524. 118 " To constitute a conversion of goods, there must be some repudiation by the defendant of the owner's right, or some ex- ercise of dominion over them by him inconsistent with such right, or some act done which has the effect of destroying or changing the quality of the ciiattel." Woqdside v. Adams, 30 N". J. Law, 417. Intention. — While it is true that a wrongful intent is not an essential element in a conversion (see Boyce v. Brockway, 31 E". Y. 490), intention may be material in those cases where the act itself is not, in law, tantamount to an assertion of title or of a right of ownership, for the purpose of determining whether there has been an assumption of property or an exercise of dominion , over the thing alleged to have been converted. In the case of Pease v. Smith, 61 1^. Y. 477, the defend- ants bought the goods, for which they were sued in conversion, in the conrse of trade, from one who had no title, and sold them before any claim was made by the owners. .The court said (p. 480) : " This exercise of an act of ownership or dominion over the plaintiff's property, assuming to sell and dispose of it as their own, was, within reason and the authorities, an act of conver- sion to their own use. The assumed act of ownership was incon- sistent with the dominion of the plaintiffs, and this is of the essence of a conversion. Knowledge and intent on the part of the defendants are not material. X^ So long as the defendants had exercised no act of ownership over the property, and had acted in good faith, a demand and refusal would be necessary to put them in the wrong and to constitute conversion. Until such de- mand, there is no apparent inconsistency between their posses- sion and the plaintiffs' ownership. After a sale has been made by the defendants, they have assumed to be the owners, and will be estopped to deny in an action by the lawful owner, the natural consequences of their act, and to resist an action for the value of the goods, ^'" > Acts not implying assektion of title. — "Conversion is based upon the idea of an assumption of property or a right of 114 dominion over the thing converted, . . . and it is, there- forej not every wrongful intermeddling with, or wrongful aspor- tation, or wrongful detention of personal property, that amounts to a conversion. Acts which themselves imply an assertion of title or of a right of dominion over personal property, such as a sale, letting or destruction of it, amount to a conversion, even although the defendant may have honestly mistaken his rights ; but acts which do not, in themselves, imply an assertion of title or of a right of dominion over such property, will not sustain an action of trover, unless done with the intention to deprive the owner of it permanently or temporarily, or unless there has been a demand for the property and a neglect'Or refusal to deliver it, which are evidence of a conversion, because they are evidence that the defendant, in withholding it, claims the right to with- hold it, which is a claim of a right of dominion over it. Whether an act involving the temporary use, control or deten- tion of property, implies an assertion of a right of dominion over it, may well depend upon the circumstances of the case and the intention of the person dealing with the property." Spooner V. Manchester, 133 Mass. 270."^ ExEEOisE OF DOMINION. — In couversion the exercise of dominion may be the result of: (1.) A wrongful taking. (2.) An illegal use or misuse. (3.) A wrongful detention. " Every tortious taking, with intent to apply chattels to the use of the taker or some other person than the owner, is a con- version." McParUandr. Mead, 11 Allen, 231. " Every unauthorized taking of personal property, and all intermeddling Avith it, beyond the extent of the authority conferred, in case a limited authority has been given, with in- tent so to apply and dispose of it as to alter its condition or in- terfere wich the owner's dominion, is a conversion." Laverty V. Snethen, 68 N. Y. 522, 524. ." Ordinarily, when one pCTSon has the chattel of another, it is his duty to deliver it to the owner or his agent on demand, 115 and, if he refuses to do so, his refusal is evidence of a conver- sion. It is, however, only prima feme evidence, and may be explained." — Singer Manuf. Co. v. King, 14 E. I. 511. Fob whom dominion exercised, is immaterial. — " It is not necessary to a conversion that there should be a manual taking of the thing in question by the defendant; it is not necessary that it should be shown that he has applied it to his own use. Do es he exerc ige a dominion over it in exclusion or in defi ance of the plaintiff's right ? If he does, that is in law a conversion, be it for his own, or another person's use." Liptrot v. Holmes^ 1 Kelly, 381. AspoETATiON. — " It is uot every interference with the property of another which constitutes a conversion. One per- son may remove the property of another person from one place to another place, without being guilty of a conversion of it to his own use. He may do it, without asserting any claim to it, for the benefit of the owner, and admitting his title to it. ' ^ Webber v. Damis, 44 Me. 147. "It is a proposition familiar to all lawyers, that a simple asportation of a chattel, without any intention of making any farther use of it, although it may be a saflBcient foundation for an action of trespass, is not suflicient to establish a conversion. . In order to constitute a conversion, it is necessary either that the party taking the goods should intend some use to be made of them, by himself or by those for whom he acts, or that, owing to his act, the goods are destroyed or consumed, to- the prejudice of the lawful owner. . . . But it has never yet been held, that the single act of removal of a chattel, inde- pendent of any claim over it, either in favor of the party him- self or any one else, amounts to a conversion of the chattel." Lord Abinger in Fouldes v. WiUoughhy, 8 M. & W. 640. See also ELdridge v. Adams, 64 Barb. 417. Distinguished fbom trespass. — "There are two principal differences between the actions of trespass and trover [teohni- lie callj called conversion, and developed, to a large extent^ through the common-law action on the case of trover] for per- sonalty appropriated by defendant ; the first of which is, that in trespass there is always either an original wrongful taking, or a taking made wrongful ah initio by subsequent misconduct, while in trover, the original taking is supposed or assun.ed to be law-^ f ul, and often the only wrong consists in a refusal to surrender a possession which was originally rightful, but the right to which has terminated. The second is, that trespass lies for any wrong- ful force, bat the wrongful force is no conversion where it is employed in recognition of the owner's right, and with no pur- pose to deprive him of his right, temporarily or permanently." Cooley on Torts, 2d ed., 517. Ancient modes of eedeess foe loss of goods. — "By the ancient law of England there existed four different modes of redress for the loss of goods : by appeal of robbery (in which restitution as well as punishment for the felony was awarded, .), by writ of replevin, by writ of trespass, and by writ of detinue. But these proceedings were not adequate for relief in all cases. The appeal of robbery availed only when goods had been feloniously taken ; and the writ of replevin was ap- plicable only in cases of distress." Bigelow's Leading Cases, 420. Keplevin. — " By the common law, whenever the goodstjof one man had been wrongfully distrained by another (not being a sheriff or his officer acting in execution of the process of a superior court), and the person out of whose possession the goods had been taken wished to have them restored to him, and to try the lawfulness of the seizure, he might get back his goods by giving security to the sheriff of the county to prosecute ah action with success, and make out the injustice of the taking. The proceeding by which this was accomplished was called a re- plevin, or the getting back of a chattel taken and detained as a pledge or security, by substituting another pledge iif%he place of the thing taken." Addison on Torts, 515. 117 Replevin distinguished from trespass. — ^"The whole proceeding of replevin at common law is distinguished from that in trespass, in this, f mongst other things, that, while the latter is intended to procure a compensation in damages for goods wrongfully taken out of the actual or constructive possession of the plaintiff, the object of the former is to procure a restitution of the floods themselves ; and this it effects by a preliminary, ex parte interierence by the officers of the law with the posses- sion. This being done, the action of replevin, apart from the replevin itself, is^again distinguished from the action of trespass by this, that, at the time of declaring, the supposed'wrongfnl possession has been put an end to. and the litigation proceeds for the purpose of deciding whether he, who by the supposition was originally possessed, and out of whose possession the goods were originally taken, and to whom they have been restored, ought to retain that possession, or whether it ought to be re- stored to the defendant. As a general rule, it is thought just that a party in the peaceable possession of goods sliould remain undisturbed, either by the parties claiming adversely or by the officers of the law, until the right is deteispiined and the posses- sion shown to be 'unlawful. But, where, either by distress or merely by a strong hand, the peaceable possession has been dis- turbed, an exceptional case arises ; and it is thought just that, even before any determination of the right, the law should in- terpose to replace the parties in the condition in wliich they were before the act done, security being taken that the right shall be tried, and the goods be forthcoming to abide the deci- sion." Mennie v. Blaie, 6 El. & Bl. 851. Replevin eegulated by statute. — Originally, replevin was confined to cases of wrongful taking, but in many of tlie states the action has been regulated by statute, and made to in- clude cases of wrongfnl detention as well as wrongful taking. The action, however, is still founded in tort, and the require- ments of the statute must be complied with in order to maintain the action. For statutory provisions in this state see Code of Civil Procedure. 118 DETmuH. — " The action of detinne lies where a party claims the specific recovery of goods and chattels or deeds and writings, detained from him." Heard's Stephen on PL, 9th Am. ed., 15. ' ' In order, . . . , to ground an action of detinue, which is only for the detaining, these points are necessary: 1. That the defendant came lawfully into possession of the goods, as either by delivery to him, or finding them ; 2. That the plaintiff have a property ; 3. That the goods themselves be of some value ; and, 4. That they be ascertained in point of identity." 3 Blacks tone Com. 151. The action of detinue supplied the defect existing in earlier times when replevin was confined to cases of wrongful taking, and was in effect a writ of debt for a chattel. The subsequent extension of the action of replevin, so as to include cases of wrongful detention as well as wrongful taking, robbed detinue of its importance, and it is now scarcely known. TitovEE AND coNTTEBSiON. — " This action of trover and ccm- version was in its original an action of trespass upon the case, for recovery of damages against such person as had fownd another's goods, and refused to deliver them on demand, but converted them to his own use ; from which finding and convert- ing it is called an action of trover and corwersion. The free- dom of this action from wager of law, and the less degree of certainty requisite in describing the goods, gave it so consider- able an advantage over the action of deUnue, that by a fiction of law actions of trover were at length permitted to be brought against any man who had in his possession by any means what- soever the personal goods of another, and sold them or used them without the consent of the owner, or refused to deliver them when demanded. The injury lies in the conversion : for any man may take the goods of another into possession, if he finds them; but no finder is allowed to acquire a property therein, unless the owner be forever unknown : and therefore he must not convert them to his own use, which the law pre- sumes him to do, if he refuses them to the owner : for which 119 reason such refusal also is prima fade, sufficient evidence of a conversion. The fact of the finding, or trover, is therefore now totally immaterial : for the plaintiff needs only to suggest (as words of form) that he lost such goods, and that the defendant found them : and if he proves that the goods are his property, and that the defendant had them in his possession, it is suf- ficient. But a conversion must be fully proved : and then in this action the plaintiff shall recover damages, equal to the value of the thing converted, but not the thing itself: which nothing will recover but an action of detimie or replevin. ' ' 3 Black- stone Com. 152. Kequisites to maintain convkesion. — " The gist of this action is the conversion and deprivation of the plaintiff's prop- erty, and not the acquisition of property by the defendant. Keyworth v. HiM, 3 Barn. & Aid. 685. The general requisites to maintain the action are property in th^ plaintiff ; actual pos- session or a right to the immediate possession tltereof ; and a wrongful conversion by the defendant." Esma/y v. Fanning, 9 Barb. 176, 188. ' ' I have always understood the rule of law to be that, in order to maintain trover, the plaintiff must have a right of prop- erty in the thing, and a right of possession, and that, unless both these rights concur, the action will not lie." Ashurst, J., in Gordon v. Harper, 7 Term K. 9. Possession and peopeett eight. — Eight of property and right to possession, being essential to support an action for con- version, may be considered under : 1. General ownership and actual possession. 2. General ownership and right to possession. 3. Special ownership and general right to possession. 4. Limited special ownership. A person in whom the general property in a chattel is vested, and who is in actual possession, may maintain an action for conversion against any person who takes such chattel and ex- ercises an dct of dominion over it to the exclusion of his rights. 120 A person in whom the general property in a chattel is vested, may maintain an action for its conversion, although he never had possession in fact; but he must show a right to the imme- diate possession of the chattel. Persons who have a special property in chattels, such as a carrier, a workman for hire, a warehouse-keeper, an auctioneer, etc. , may maintain an action for conversion against any one who takes and keeps them without color of right so to do. If, at the time of the conversion, the plaintifiE was in actual possession, it is no defense for the defendant to show title in a third person, unless he connect himself in some way with the owner of the chattel. See Wheeler v. Lawson, 103 N. Y. 40. It has been decided that possession alone is suflBcient to en- able one to maintain an action for conversion, and in a leading case (see Armory v. Ddamwrie, 1 Strange, 506), since recog- nized as authority, the finder of a jewel was held entitled to bring an action for conversion against one, who, having taken the jewel for examination, refused to return it to the finder. Demand aitd befusal. — Demand and refusal do not in themselves constitute conversion, but they furnish proof of con- version ; hence they are important and essential only in cases of lawful taking, but unlawful detention, of property. In cases of wrongful taking, or of illegal use or misuse of prop- erty, they are not essential or necessary, because the wrongful act of the exercise of dominion constitutes conversion. It is, perhaps, safer and better to make demand, and to plead de- mand and refusal in all cases, in order to be sure of the evidence of conversion, and to avoid being taken by surprise at trial. " A demand arid refusal are not a conversion, but evidence from which it can be inferred. A demand is necessary when- ever the goods have come lawfully into the defendant's posses- sion, unless the plaintiff can prove some wrongful act of the de- fendant in respect of the goods which amounts to an actual con- version." Esmay v. Farmmg, 9 Barb. 176, 189. 121 Eemedies. — When personal property has been converted, plaintiff may elect one of the following remedies : 1. - Sue to recover the goods {Ueplevin) ; or 2. Sue for the value of the goods {Conversiori); or 3. Waive the tort, and sue in assumpsit. Measure of damages. — "An amount sufficient to indem- nify the party injured for the loss, which is the natural, reason- able and proximate result of the wrongful act complained of, and which a proper degree of prudence on the part of the com- plainant would not have averted, is the measure of damages which juries are usually instructed to award, except in cases where punitive damages are allowable. " Bakery. Drake, 53 N. Y. 211, 216. • " The value of the chattel, at the time of the conversion, is not, in all cases, the rule of damages in trover ; if the thing be of a determinate and fixed value, it may be the rule, but where there is an uncertainty, or fluctuation attending the value, and the chattel afterwards rises in value, the plaintiff can only be indemnified by giving him the price of it, at the time he calls upon the defendant to restore it, and one of the cases even carries the value down to the time of the trial." Cortelyou v. Lemsing, 2 Caines Cases in Error, 200, 216 (Kent, J.). " It is the natural and proximate loss whicli the plaintiff is to be indemnified for, and that cannot be said to extend to the highest price before trial, but only to the highest price reached within a reasonable time after the plaintiff has learned of the conversion of his stock within which he could go in the market and repurchase it. What is a reasonable time when the facts are undisputed and different inferences cannot reasonably be drawn from the same facts, is a question of law." Wright v. Bank of the Metropolis, 110 N. T. 237, 249. NUISANCE. . Defiited. — Mr. Justice Blackstone defines a nuisance as "any thing done to the hurt or annoyance of the lands, tene- ments, or hereditaments of another." 3 Com. 216. 122 " N^aisance is the wrong done to a man by unlawfully dis- turbing him in the enjoyment of his property, or, in some cases, in the exercise of a common right. " Pollock on Torts, 324. " An actionable nuisance may, . . . , be said to be any thing wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights. ' ' Cooley on Torts, 2d ed., 670. " A nuisance, in the ordinary sense in which the word is used, is any thing that disturbs one or is offensive ; but in legal phraseology it is applied to that class of wrongs that arise from the unreasonable, unwarrantable or unlawful use by a person of his own property, real or personal, or from his own improper, indecent or unlawful personal conduct, working an obstruction of, or injury to, a right of another or of the public, and produ- cing such material annoyance, inconvenience, discomfort or hurt, that the law will presume a consequent damage." Wood on Nuisance, 3d ed., 1. Distinguished feom tebspass. — " The distinction between nuisance and trespass is that nuisance is only a consequence or result of what is not directly or immediately injurious, but its effect is injurious, while trespass is^ an immediate invasion of property." Arigell on Water Courses, § 388. "The cause of action in trespass is interference with the ' right of a possessor in itself, while in nuisance it is the incom- modity which is proved in fact to be the consequence, or is pre- sumed by the law to be the natural and necessary consequence, of such interference." Pollock on Torts, 329. What constitutes a nuisance. — " It is a genoral rule that every person may exercise exclusive dominion over his own property, and subject it to such uses as will best subserve his private interests. Generally, no other person can say how he shall use or what he shall do with his property. But this general right of property has its exceptions and qualifications. &io utere iuo ut alienurn non Icedas is an old maxim which has a' broad application. It does riot mean that one must never use 123 his own 80 as to do any injury to his neighbor or his property. Such a rule could not be enforced in civilized society. Persons living in organized communities must suffer some damage, an- noyance, and inconvenience from each other. For these they are compensated by all the advantages of civihzed society. If one lives in the city, he must expect to suffer the dirt, smoke, noisome odors, noise and confusion incident to city life. . . . "But every person is bound to make a reasonable use of his property, so as to occasion no unnecessary damage or annoy- a;nce tj his neighbor. If he make an unreasonable, unwarrant- able, or unlawful use of it, so as to produce material annoyance, inconvenience, discomfort, or hurt to his neighbor, he will be guilty of a nuisance to his neighbor, and the law will hold him responsible for the consequent damage. As to what is a reason- able use of one's own property cannot be defined by any certain general rules, but must depend upon the circumstances of each case. A use of property in one locality, and under some cir- cumstances, may be lawful and reasonable, which, under other circumstances, would be unlawful, unreasonable, and a nui- sance. To constitute a nuisance, the use must be such as to pro- duce a tangible a d appreciable injury to neighboring property, or such as to render its enjoyment special [y uncomfortable or in- convenient. " Gampbdl Y. Seaman, 63 K. Y . 568, 676. Injuet to pkopeett and phtsical discomfort distin- GursHED. — " My lords, in matters of this description it appears to me that it is a very desirable thing to mark the difference be- tween an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the prop- erty, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible pertonal discomfort. With regard to the latter, namely, the personal inconvenience and interference with one's enjoy- ment, one's quiet, one's personal ireedom, anything that dis- composes or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must undoubt- edly depend greatly on the circumstances of the place where the 124 thing complained of actually occurs. If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his im- mediate locality, which are actually necessary for trade and com- merce., and also for the enjoyment of property, and fof^the ben- efit of the inhabitants of the town and of the public at large. If a man liv|B in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint because to himself individually there may arise much disteomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighborhood of another, and the result of that trade or occupation or business is a material injury to property, then tliere unquestionably arises a very different con- sideration. I think, my lords, that in a case of that description, the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbors, would not apply to circumstances the immediate result of which is sensible injury to the value of the property. ' ' St. Helenas Smelting Go. v. Tipping^ 11 H. L. Cas. 642. With reference to this distinction, Mr. Bigelow (Leading Cases, 467) remarks: "Just what the distinction is it is proba- bly impossible to say ; and the distinction itself is difficult to apprehend. The meaning appears to be that the degree of harm in an action for personal discomfort must be greater than in an action for an injury to property. This may be a practical rule in a case where both kinds of injury appear ; but how will it be where the action is for personal discomfort, and there is no proof of injury to property ? How much discomfort must be endured ? ' ' Standard foe bodily discomfoet. — "In densely popu- lated communities the use of property in many ways which are legitimate and proper, necessarily affects in greater or less de- gree the property or persons of others in the vicinity. In such oases the inquiry always is, when rights are called in question. 125 what is reasonable under the circumstances. If a use of prop- erty is objectionable solely on account of the noise which it makes, it is a nuisance, if at all, by reason of its effect upon the health or comfort of those who are within hearing. The right to make a noise for a proper purpose must be measured in ref- erence to the degree of annoyance which others may reasonably be required to submit to. In connection with the importance of the business from which it proceeds, that must be deter- mined by the effect of the noise upon people generally, and not upon those, on the one hand, who are peculiarly susceptible to it, or those, on the other, who by long experience liave learned to endure it without inconvenience; not upon those whose strong nerves and robust health enable them to endure the greatest disturbances without suffering, nor upon those whose mental or physical condition makes them painfully sensitive to everything about them. ' ' That this must be the rule in regard to public nuisances is obvious. It is the rule as well, and for reasons nearly if not quite as satisfactory, in relation to private nuisaiices. Upon a question whether one can lawfully ring his factory bell, or run his noisy machinery, or whether the noise will be a private nui- sance to the occupant of a house near by, it is necessary to as- certain the natural and probable effect of the sound upon ordi- nary persons in that house, not how it will affect a particular person who happens to be there to-day, or who may chance to come to-morrow. " If one's right to use his property were to depend upon the effect of the use upon a person of peculiar temperament or disposition, or upon one suffering from an uncommon disease, the standard for measuring it would be so uncertain and fluctu- , ating as to paralyze industrial enterprises." Hogers v. Elliott, 146 Mass. 349. Classification. — Nuisances axepi^Uoor private according as they affect public or private rights. 126 Public nuisance. — Public nuisances, -strictly, are such as result from the violation of public rights, and, producing no special injury to one more than another of the people, may be said to have a common effect, and to produce a common dam- age. " Wood on Nuisance, 3d ed. , 34. ' ' A common or public nuisance is that which affects the people and is a violation of a public right, either by direct en- croachment upon public property or by doing some act which ' tends to a common injury, or by the omitting of that which the common good requires, and which it is the duty of a person t(/ do. Public nuisances are founded upon wrongs that arise from the unreasonable, unwarrantable or unlawful use of property, or from improper, indecent or unlawful conduct working an ob- struction or injury to the public and producing material annoy- ance, inconvenience and discomfort. Founded upon a wrong, it is indictable as for a misdemeanor." Dissenting opinion in JBohm V. P. J. G. L. Co., 122jr. Y. 18, 32. ' ' A public nuisance is a crime against the order and economy of the state, and consists in unlawfully doing an act, or omitting to perform a duty, which act or omission : "1. Annoys, injures, or endangers the comfort, repose, health or safety of any considerable number of persons ; or "2. Offends public decency; or ' ' 3. Unlawfully interferes with, obstructs, or tends to ob- struct, or renders dangerous for passage, a late or a navigable river, bay, stream, canal or basin, or a public park, square, street or highway ; or "4:. In any way renders a considerable number of persons insecure in life, or the use of property." N". Y. Penal Code, § 385. Private nuisance. — " Private nuisances are injuries that result from the violation of private rights, and produce dam- ages to but one or a few persons, so that it cannot be said to be public." Wood on Nuisance, 3d ed., 35. " A private nuisance rests upon a different principle [from a public nuisance]. It is not necessarily founded upon a wrong, 137 aud consequently cannot be indicted and punished as for an offence. It is founded upon injuries that result from the viola- latiou of private rights aud produce damages to but one or few persons. Injury and damage are essential elements, and yet they may both exist and still the act or thing producing them not be a nuisance. Every person has a right to the reasonable enjoyment of his own property, and so long as the use to which he devotes it violates no rights of another, however much dam- age others may sustain therefrom, his use is lawful and it is damnum, absque injuria.'''' Dissenting opinion in Bohany. P. J. Q. L. Co., 122 N. T. 18, 33. A PUBLIC NUISANCE MAT ALSO BE A PRIVATE NUISANCE. A public nuisance also becomes a private nuisance when it occa- sions special damage to an individual. In such case a civil, as well as criminal, action will lie. ' ' Every individual who suffers actual damage from a com- mon nuisance may maintain an action for his own particular injury, though there may be others equally damnified. It is essential, however, to allege and prove special damage. ' ' Sedg- wick on Damages, 8th ed., 62. " One erecting or maintaining a common nuisance is not liable to an action at the suit of one who has sustained no dam- age therefrom except such as is common to the entire commu- nity, yet he is liable at the suit of one who has sustained damage peculiar to himself. No matter how numerous the persons may be who have sustained this peculiar damage, each is entitled to compensation for his injury. When the injury is .common to the public and special to none, redress must be sought by a criminal prosecution in behalf of all." Francis-^. Schoellkopf, 63 K Y. 152, 154. " If the business is unlawful, the complainant in a private action must show special damage, by which the legitimate use of his adjoining property has been interfered with, or its occupa- tion rendered unfit, or uncomfortable. That the perpetrator of a nuisance is amenable to the provisions and penalties of the criminal law is not an answer to an action against him by a pri- 128 vate person to reoovier for injury sustained, and for an injunc- tion against the continued use of his premises in such a manner. The principle has been long settled that the objection that the nuisance was a common one is not available, if it be shown that special damage was suffered." Crawford y. Tyrrell, 128 N. T. 341, 344. ' CoNTnnnKG nuisance. — "In the case of miisances or re- peated trespasses, recovery can ordinarily be had only up to the commencement of the suit, because every continuance or repe- tition of the nuisance gives rise to a new cause of action, and the plaintiff may bring successive actions ^longas the nuisance lasts. . . . The cause of action, in case of an ordinary nuisance, is not so much the act of the defendant, as the injuri- ous consequences resulting from his act ; and hence the cause of action does not arise until such consequences occur, nor can the damages be estimated beyond the date of bringing the first suit. (5 Am. & Eng. Enc. of Law, page 17 and cases in notes.) It has been held, however, where permanent structures are erected, resulting in injury to adjacent realty, all damages may be re- covered in a single suit. (Idem, page 20 and cases in note.) But there is much confusion among the authorities, which at- tempt to distinguish between cases where successive" actions lie, and those in which only one action may be maintained. " . . . Some cases hold it to be unreasonable to as- sume, that a nuisance or illegal act will continue forever, and therefore refuse to give entire damages as for a permanent in- jury, but allow-such damages for the continuation of the wrong as accrue up to the da,te of the bringing of the suit. Other cases take>the ground, that the entire controversy should be settled in a single suit, and that damages should be allowed for the whole injury past and prospective, if such injury be proven with reasonable certainty to be permanent in- its character. . . , "We think upon the whole \hat the more correct view- is presented in the former class of cases." ScUitz Brewim^ Co. V. Compton, 142 111, 511. 139 " There has never been in this state before this case the least doubt expressed in any judicial decision, so far as I can discover, that the plaintiff in such a case is entitled to recover damages only up to the commencement of the action. That such is the rule is as well settled here as any rule of law can be by repeated and uniform decisions of all the courts ; and it is the prevailing doctrine elsewhere. ******** " . . . Here the authorities are entirely uniform that in such an action as this, damages can be recovered only up to the commencement of the action, and that the remedy of the plaintiff is by successive actions for his damages until "the nui- sance shall be abated." Ulme v. JST. Y. O. c& H. R. R. R. Co., 101 N. T. 98, 109. Pakties. — Every person who has been especially aggrieved has a right of action, and every person who creates or continues a nuisance is liable. " A person by whom the nuisance has been erected, and a person to whom the real property has been'transferred, may be joined as defendants in such an action." N. Y. Code Civ. Pro., §1661. " It is not the general rule that an owner of land is, as such, responsible for any nuisance thereon. It is the occupier, and he alone, to whom such responsibility generally and prima facie attaches. . . . The owner is responsible if he creates a nuisance and maintains it ; if he creates a nuisance and then demises the land with the nuisance thereon, although he is out of occupation ; if the nuisance was erected on the land by a prior owner, or by a stranger, and he knowingly maintains it ; if he has demised premises and covenanted to keep them in re- repair, and omits to repair, and thus they becoifie a nuisance ; if he demises premises to be used as a nuisance, or for a busi- ness, or in a way so that they will necessarily become a nui- sance. "A grantee or devisee of premises upon which there is a nuisance at the time the title passes, is not responsible for the 130 nuisance until he has had notice thereof, and in some cases until he has been requested to abate the same. The authorities to this effect are so numerous and uniform that the rule which they establish ought no longer to be open to question. ' ' Ahem v. Steele, 115 K Y. 203, 209. Eemedies. — "The remedies for nuisances are threefold: preventive, compensatory and punitive. The first divides itself again into the remedy by abatement, without process of law, and by injunction. The compensatory remedy is an action at law for damages, the punitive remedy an indictment on behalf of the public." XVI. Am. & Eng. Enc. of Law, 959. , { Abatement defined. — Abatement, as applied to nuisanfee, has been defined as "The removal, prostration, or destruction of that which causes a nuisance, whether by breaking or pulling it down, or otherwise removing, disintegrating, or effacing it. The remedy which the law allows a party injured by a nuisance of destroying or removing it'by his own act, so as he commits no riot in doing it, nor , occasions (in the case of a private nui- sance) any damage beyond what the removal of the inconvenience necessarily requires." (Black's Law Die.) Theory of abatement. — " It is not lawful by the common law for any and all persons to abate a common nuisance, merely because it is a common nuisance, though the doctrine may have been sometimes stated in terms so general as to give countenance to this supposition. This right and power is never entrusted to individuals jn general, withoilt process of law, by way of vindi- cating the puhlic right,' but solely for the relief of a party whose right is obstructed by such nuisance. * ' ' The true theory of abatement of nuisance is that an individ- ual citizen may abate a private nuisance injurious to him, when he could also bring an action ; find also, when a common nui- sance obstructs his individual right, he may remove it to enable 131 him to enjoy that right, and he cannot be called in question for so doing. As in the case of the obstruction across a highway, and an unauthorized bridge over a navigable water-course, if he has occasion to use it, he may remove it by way of abatement. But this would not justify strangers, being inhabitants of other parts of the Commonwealth, having no such occasion to use it, to do the same. Some of the earlier cases, perhaps, in laying down the general proposition that private subjects may abate a common nuisance, did not expressly mark this distinction ; but we think, upon the authority of modern cases, where the dis- tinctions are more accurately made, and upon principle, this is the true rule of law." Brown v. Perhms, 12 Gray, 89. " An individual aggrieved by a private nuisance may have his action, or he may abate the nuisance. A party sustaining a special injury from a public or common nuisance may also have his action, and in the like case he may abate the nuisance. In the language of Lord Campbell, it becomes to him a private nuisance. He may remove that which interferes with his right, to the extent necessary to the reasonable enjoyment of the right of which the thing interposed would deprive him, doing no un- necessary damage. A party, by erecting a nuisance, does not put himself, or his property, beyond the protection of the law> If an individual or member of the community can with reason- able care, notwithstanding the act complained of, enjoy the right or franchise belonging to him, he is not at liberty to destroy or interfere with the property of the wrongdoer. " Earrower y. Ritson, 3Y Barb. 301, 310. Effect of abatement upon action. — "It is contended that the remedy by action was barred by the abatement ; that the plaintiff baring taken the means of redress into his own hands, is concluded, as in ease of distraining an article damage- feasant. "We do not understand this to be the effect of remov- ing a nuisance. True, it is treated in the books as a remedy by the act of the party. But it does not operate to redress the in- jury like a distress. It is preventive merely; and resembles more an entry into land, or recaption of personal property. 133 lyfeither will bar an action for the original invasion of the plain- tijBE's right. Suppose in this case the plaintiff's horse or carriage had been injured ; would it be pretended that his afterwards throwing down the fence, should operate as an indemnity ? The case at bar depends on the same principle. ' ' Pierce v. Da/ri^ 1 Cowen, 609, 612. "In the case of a private nuisance, the aggrieved party has an election of remedies. He may remove the nuisance, or he may have his action for the private damages sustained by him. He can not have both remedies." Griffith v. McOvllom, 46 Barb. 561, 569. '' The rule stated in Pierce v. Dcert, swpra, would seem to be the correct one, because the remedy by abatement can in no sense be regarded as compensatory, and the aggrieved party is limited in the exercise of the right, viz. , " he may remove that which interferes with his right, to the extent necessary to the reasonable enjoyment of the right of which the thing interposed would deprive him. ' ' " The abatement of a nuisance by the plaintiff does not preclude him from recovering damages sustained anterior to such abatement. Oleason v. Gcury, i Conn. 418; Tate v. Par- rish, Y Monr. (Ky.) 325 ; Orumj? v. Zambert, 13 L. T. (N. S.) 133; affirming S. C, L. R, 3 Eq. 409." 4 Wait's Act. & Def. T76. Abatement a dangeeous eemedt. — "This remedy is a dangerous one, and one which should never be resorted to ex- cept in extreme cases, when the exigencies of the case will not brook delay. The law generally affords ample redress for all injuries, and if no verdict declaring the thing to be a nuisance can be obtained, no justification for its removal can be upheld. The party judges at his peril, and if he errs in judgment he is answerable for all the damages that ensue, and if, in the exer- cise of the right, a breach of the peace is involved, he is answer- able by indictment for the result. Therefore, generally, it is unsafe to advise a party to remove a nuisance himself, at least if the nuisance is not beyond doubt, and the removal confined 183 within the limits of actual right." Wood on Nuisances, 3d ed., §848. Injunction. — " It is a matter of common learning and practice that an injunction is not, like damages, a remedy (as it is said) ea! delito justiticB. Whether it shall be granted or not in a given case is in the judicial discretion of the court, now guided by principles which have become pretty well settled. In order to obtain an injunction it must be shown that the injury complained of as present or impending is such as by reason of its gravity, or its permanent character, or both, cannot be adequately compensated in damages. The injury must be either irreparable or continuous.. This remedy is therefore not appro- priate for damage which is in its nature temporary and inter- mittent, or accidental and occasional, or for an interference with legal rights which is trifling in amount and effect." XVI. Am. & Eng. Enc. of Law, 959. " Formerly this power was exercised sparingly, and only in extreme cases, at least until after the right and the question of nuisance had been first settled at law. But now the only effectual remedy for the abatement of a nuisance, except where special provision is made therefor by statute, is in a court of equity, and the jurisdiction is predicated upon the broad ground of preventing irreparable injury, interminable litigation, a mul- tiplicity of actions, and the protection of rights." Wood on Nuisances, § 777. ' ' The cases in which chancery has interfered by injunction, to prevent or remove a private nuisance, are those in which the nuisance has been erected to the prejudice or annoyance of a right which the other party had long previousl/y enjoyed. It must be a strong and mischievous ease of pressing necessity, or the right must have been previously established at law, to entitle the party to call to his aid the jurisdiction of this Court." Vam Bergen v. Vam, Bergen, 3 Johns. Ch. 282, 287. ' ' If the thing sought to be prohibited is in itself a nui- sance, the court will interfere to stay irreparable mischief, where the complainant's right is not doubtful, without waiting 134 for the result of a trial. But where the thing sought to be re- strained is not in itself noxious, but only something which may according to circumstances prove to be so, the court will refuse to interfere until the matter has been tried at law by an action ; though in particular cases the court may direct an issue, for its own satisfaction, where an action could not be brought in such a form as to meet the question. And in applying these princi- ples, if the magnitude of the injury to be dreaded is great, and the risk so imminent that no prudent person would think of incurring it, the court will not refuse its aid for the protection of the complainant's rights, by injunction, on the ground that there is a bare possibility that the anticipated injury from the noxious erection may not happen. ' ' Mohawk Bridge Co. v. JJtiea c6 Sohenectady R. R. Co., 6 Paige, 654, 563. "Prior to Lord Eldon's time, injunctions were rarely issued by courts of equity .~ During the many years he sat upon the woolsack this remedy was resorted to with increasing fre- quency, and with the development of equity jurisprudence, which has taken place since his time, it is well said that the writ of injunction has become the right arm of the court. It was formerly rarely issued in the case of a nuisance until plaintiff's right bad been established at law, and the doctrine which now seems to prevail in Pennsylvania, that this writ is not matter of right, but of grace, to a large extent prevailed. But now a suit at law is no longer a necessary preliminary, and the right to an injunction, in a proper case, in England and most of the States, is just as fixed and certain as the right to any other provisional remedy. The writ can rightfully be demauded to prevent irre- parable injury, interminable litigation and a multiplicity of suits, and its refusal in a proper case would be error to be cor- rected by an appellate tribunal. It is matter of grace in no sense except that it rests in the sound discretion of the court, and that discretion is not an arbitrary one. If improperly exer- cised in any case either in granting or refusing it, the error is one to be corrected upon appeal. ' ' Campbell v. Seaman, 63 N. T. 568, 582. 135 Damages. — " In an action for a nuisance the general rule is, that the plain tiflE's measure of damages is the loss actually sustained. . . . One who, therefore, in the exercise of what he believes to be his rights, commits a nuisance against the property of another, is "bound only for the actual damages suffered, including the trouble and expense of establishing the right 'to have the nuisance abated. . . . And a man may not, with impunity, invade the premises of another simply be- cause the damage may not be a^pprecialle. The law permits the recovery of nominal damages at least, as evidence of the plain- tiff's right." 4 Wait's Act. & Def. Y76. In Barrick v. Schifferdecker, 123 N. Y. 52, the court having denied equitable relief, it was held that the aggregate damage suffered by the plaintiff was the rental value to the time of the trial and the cost of prevention, the court (p. 56) saying : " The rental value to the time of the trial, and in addition the Slim necessary to repair plaintiff's house and put it in a con- dition which would prevent future injury from the same cause were first shown, and their aggregate would cover the total dam- ages possible to be sustained. When to that, permanent depre- ciation is added, damages are given for what cannot occur. The cost of prevention and the result of continuance cannot both be given. The award of the one must necessarily exclude the other." ' ' For injuries permanently affecting realty, the measure of damages is the difference between what the property would have sold for before and after the injury. ' ' For nuisances affecting the enjoyment and occupancy of realty, the measure of damages is generally the loss of rents or the depreciation in rental value." XVI. Am. & Eng. Enc. of Law, 984. See also Fra/nois v. Sohoellhopf, 63 -N. T. 152. NEGLIGENCE. Defined. — "Actionable negligence is the inadvertent fail- ure of a legally responsible person to use ordinary care under the circumstances in observing or performing a noncontractual 136 duty, implied by law, which failure is the proximate cause of injury to a person to whom the duty is due." XVI. Am. & Eng. Enc. of Law, 389. " Negligence, constituting a cause of civil action, is such an omission, by a responsible person, to use that degree of care, diligence and skill which it was his legal duty to ise for the pro- tection of another person from injury as, in a natural and con- tinuous sequence, causes intended damage to the latter." Shearman & Redfield on Negligence, 5th ed., § 3. Essential elements. — A cause of action for negligence depends upon the concurrence of negligence and damage, and is established by proof of : 1. A legal duty to use care. 2. A breach of that duty. 3. Damage proximatelyresulting. Duty owing. — "There is no negligence in a legal sense which can give a right of action, unless there is a violation of a legal duty to exercise care. The duty may exist as to some per- sons, and not as to others, depending upon peculiar relations and circumstances." Larmore\. Crown Point Iron Co., 101 IS. Y. 391, 394. ' ' Negligence is a violation of the obligation which enjoins care and caution in what we do. But this duty is relative, and where it has no existence .between particular parties, there can be no such thing as negligence in the legal sense of the term." Towamda R'y Co. v. Mwnger, 5 Denio, 255, 266. Duty and meee oonteact obligation. — "Ordinarily, the essence of a tort consists in the violation of some duty due to an individual, which duty is a thing different from the mere con- tract obligation. When such duty grows out of relations of trust and confidence, . . . , the ground of the duty is apparent, and the tort is, in general, easily separable from the mere breach of contract. But where no such relation flows from the constituted contract, and still, a breach of its obligation is 137 made the essential and principal means, in combination with other and perhaps innocent acts and conditions, of inflicting another and different injury, and accomplishing another and different purpose^ the question whether such invasion of a right is actionable as a breach of contract only, or also as a tort, leads to a somewhat difficult search for a distinguishing test. ****** ' ' It may be granted that an omission to perform a con- tract obligation is never a tort, unless that omission is also an omission of a legal duty. But such legal duty may arise, not merely out of certain relations of trust and confidence, inherent in the nature of the contract itself, . . . , but may spring from extraneous circumstances^ not constituting elements of the contract as such, l,lthough connected with and dependent upon it, and born of that wider range of legal duty which is due from every man to his fellow, to respect his rights of prop- erty and person, and refrain from invading them by force or fraud. It has been well said that the liability to make repara- tion for an injury rests not upon the consideration of any reciprocal obligation, but upon an original moral duty enjoined upon every person so to conduct himself, or exercise his own rights as not to injure another. {Kerwhaclcer v. O. C. c6 C. a. JS. Co., 3 Ohio St. 188.) Whatever its origin, such legal duty is uniformily recognized, and has been constantly applied as the' foundation of actions for wrongs ; and it rests upon and grows out of the relations which men bear to each other in the framework of organized society. It is then doubtless true, that a mere contract obligation may establish no relation out of which a separate or specific legal duty arises, and yet extraneous cir- cumstances and conditions, in connection with it, may establish such a relation as to make its performance a legal duty, and its omission a wrong to be redressed. The duty and the tort grow out of the entire range of facts of which the breach of the con- tract was but one." JSich v. JV. Y. C. <& H. R. E. R. Co., 87 K Y. 382, 390. Purpose ok intent. — " In negligence, . . . , there is no purpose to do a wrongful act, or to omit the performance 138 of a duty. There is, however, an absence of proper attention, care or skill. It is strictly nonfeasance, not malfeasance." Gm-dmer v. HearU, 3 Denio, 232, 236. ' ' Since negligence necessarily implies inadvertence and lack of intent, such an expression as ' wilful negligence ' is a contradiction in terms and can mean nothing. Its use arises from a confusion of ' negligence ' with ' neglect, ' which latter may be intentional; . . . The distinction between negli- gence and wilful tort is important to .be observed, not only in order to avoid a confusion of principles, but it is necessary in determining the question of damages, since in case of an injury by the former, damages can only be compensatory ; while in the latter they may also be punitory, vindictive, or exemplary. The distinction is also needful because of the defences which may be set up; contributory negligence of the plaintifE is no bar to an action for a wilful tort, though it is a complete bar to an action for negligence." XYI. Am. & Eng. Enc. of Law, 394. In the case of Kai/n v. Larkin, 56 Hun, 79, the action was brought, under § 1902 of the Code of Civil Procedure, to recover damages, alleged to have been caused by the wrongful act of the defendant. ' ' The defendant, who was acting as an officer, told Kain, the deceased, to go about his business and shoved him off the sidewalk. Kain came back and defendant again told him to go home. He said defendant could not make him. Then defendant shot him." In reversing judgment in favor of the defendant, the General Term of the Supreme Court (p. 80) said: "The Code of Civil Procedure, section 1902, authorizes this action in case the defendant would have been liable to an action in favor of the decedent if death had not ensued. Section 1899 shows that the defendant is liable to this action, although he might also be criminally prosecuted. " . . . The learned justice who tried the cause charged that the plaintiff could not recover if the decedent in any degree contributed to the injury. In thus charging he applied the rule which governs actions based solely on the negligence of the de- fendant. . . . But this rule does not apply to an action for injuries caused by an assault of the defendant. ' ' 139 Caee and cAtTTioN. — In Cogga v. Barnard, 2 Ld. Eaym. 909, Lord Holt divided negligence, as applied to bailments, into three classes or grades, viz., gross, ordina/ry and sUght. In those cases where the bailment was exclusively for the benefit of the bailor, the bailee was responsible only for gross negligence ; in other words, the bailee was required to exercise only slight care. In those cases where the bailment was for the benefit of bailor and bailee, the bailee was liable for ordinary negligence, 'and hence was required to exercise ordinary care. In those cases where the bailment was for the exclusive benefit of the bailee, the bailee was responsible for slight negligence, and hence was required to use great care. Such classification J in the law of torts, is of no practical value, and has been abandoned by the courts generally. " The theory that there are three degrees of negligence, described by the terms slight, ordinary, and gross, has been in- troduced into the common law from some of the commentators on the Koman law. It may be doubted if these terms can be usefully applied in practice. Their meaning is not fixed, or capable of being so. One degree, thus described, not only may be confounded with another, but it is quite impracticable exactly to distinguish them. Their signification necessarily varies ac- cording to circumstances, to whose influence the courts have been forced to yield, until there are so many real exceptions that the rules themselves can scarcely be said to have a general operation. In Storer v. Gowen, 18 Maine E. 177, the Supreme Court of Maine say : ' How much care will, in a given case, relieve a party from the imputation of gross negligence, or what omission will amount to the charge, is necessarily a question of fact, depending on a great variety of circumstances which the law cannot exactly define.' Mr. Justice Story (Bailments, § 11), says : ' Indeed, what is common or ordinary diligence is more a matter of fact than of law. ' If the law furnishes no definition of the terms gross negligence, or ordinary negligence, which can be applied in practice, but leaves it to the jury to de- termine, in each case, what the duty was, and what omissions amount to a breach of it, it would seem tbat imperfect and con- 140 fessedly unsuccessful attempts to define that duty, had better be abandoned." Steamboat N&m World v. King, 16 How. 469, 474. "The difficulty of defining gross negligence, and the in- trinsic uncertainty pertaining to the question £ts one of law, and the other impracticability of establishing any precise rule on the subject, renders it unsafe to base any legal decision on distinc- tions of the degrees of negligence. Certainly before eases are made to turn by the verdict of juries, upon any such distinction, the judges should be able to define, with some precision, what they mean by gross negligence, slight negligence and ordinary negligence. It will be seen on examining the many cases re- ported, where the question has arisen, that this has been found utterly impracticable by the judges,. when called upon to instruct juries on the question, and also when called on to declare the law more carefully in bank. "Negligence is essentially 'always a question of fact, and every case depends necessarily upon its own peculiar circum- stances^ What is negligent in a given case, may easily be affirmed by a jury; but in what degree the negligence consists, in any scale of classification of degrees of negligence, is not so easily determined — will ordinarily be a matter of pure specula- tion and of no practical consequence. ' ' JPerJcins v. N. Y. O. B. B. Co., 24 JSr. T. 196, 207. SxAifDAED OF DUTY. — " lu cases of pure tort, there is only one standard of conduct (that of ordinary diligen.ce), and only one criterion of diligence (the conduct of the prudent man).'' Jag- gard on Torts, II., 818. "The standard of duty is not the foresight and caution which this or that particular man is capable of, but the foresight and caution of a prudent man — the average prudent man, or, as our books rather affect to saiy, a reasonable man — standing in this or that man's shoes." Pollock on Torts, 357. "A careful man is guided by a reasonable estimate of pos- sibilities. His precaution is measured by that which appears likely in the usual course of things. The rule does not require 141 Mm to use every possible precaution to avoid injury to others. He is only required to use such reasonable precautions to pre- vent accidents as would ordinarily be adopted by careful, pru- dent persons under like circumstances." Schmidt v. Steinway ds Hunter's Point B'y Co., 132 K T. 666, 668. ''So far as civil liability is concerned, . . . , if a man's conduct is such as would be reckless in a man of ordinary prudence, it is reckless in him. Unless he can bring himself within some broadly defined exception to general rules, the law deliberately leaves his idiosyncrasies out of account, and per- emptorily assumes that he has as much capacity to judge and foresee consequences as a man of ordinary prudence would have in the same situation." CorrnnonAjoeaUh v; Pierce, 138 Mass'. 165. iRuLE AS TO CAEEIEES OF PASSEH"GEES. " It is the Settled rule of common law throughout the United States, and probably also in Great Britain and Ireland,, that common carriers of per- sons, and especially railway companies, are liable for any dam- age suffered by their passengers, which is proximately caused by the failure of such carriers to use the highest degree of pru- dence, and, in some cases, the utmost human skill and foresight. This precise language is constantly used in-charging juries, and it is sustained by such controlling authority as to make it useless to discuss its propriety at any length. But while these words cannot be excepted to, the current of decisions shows that a carrier is entitled to have them explained to the jury. The courts do not hold that carriers are bound to use the highest de- gree of prudence or skill which could be conceived of as possible to man. They are only held to the highest degree which has been demonstrated by experience to be practicable. ' ' Shear- man & Eedfield on Negligence, 5th ed.', § 61. ' ' The cases in this court of Brown v. N". Y. Central RmJ^oad Gomjpomy (18 E". T., 408), and Peyo v. N. Y. Gen- ital Bail/road Company (34 id.), were decided upon, and re- iterate the well-settled rule that ' passenger carriers bind them- selves to carry safely those whom they take into their coaches, 143 as far as human care and foresight will go, that is, to the utmost care and diligence of very cautious persons. ' "Applying the rule to the case before us, it cannot be doubted that the jury were authorized, from the testimony ad- duced by the plaintiflE, to find that if the conductor had exer- cised such a degree of care and diligence, the injury to the plain- tiff would not have occurred. - He saw the truck [a hook and ladder truck running to a fire] behind his car on the same track with it, and approaching it with great rapidity, and it was within 15 or 20 feet of it when he stopped the car, and calling upon the plaintiff [who was a passenger] to leave it, led or guided her out on the rear platform where she was struck. " The street was so obstructed by a car to the west of the truck and by a vehicle carrying an iron boiler, and carts to the east of it, that the passage of the truck was confined to the track on which it was running, and it was impossible for those in charge of it to stop or turn it so as to avoid collision within the space between it and the car, at the time the car was stopped. It was the duty of the conductor in the exercise of that fore- sight as to possible dangers which carriers of passengers are bound to observe, to notice and consider these circumstances ; and his conduct in disregarding them, or in stopping his car in view of them, and in bringing a passenger out of it on to the rear platform, cannot be regarded as the exercise of the ' utmost care and diligence of very cautious persons.' " Ma/oerioh v. Eighth Ave. R. E. Co., 36 K T. 378, 381. ' ' Railroad companies, whose cars are drawn by steam, at a high rate of speed, are held to the greatest skill, care and dili- gence in the manufacture of their cars and engines, and in the management of their roads, because of the great danger from their hazardous mode of conveyance to human life in case of any negligence. But the same degree of care and skill is not required from carriers of passengers by stage coaches {Hegemam V. Western RmVrqad Corporation, 13 N. T. 9) ; and, for the same reason, is not requfred from the carriers of passengers upon street ears drawn by horses. The degree of care required in any case must have reference to the subject-matter, and must 143 be such only as a man of ordinary prudence and capacity may be expected to exercise in the same circumstances. In some cases this rule will require the highest degree of care, and in others much less." linger v. Forty-second Street, etc.. jR. R. Co., 51N. Y. 49Y, 501. " This accident happened at a pla3e where the defendant's road crossed the tracks of a steam railroad, by the steam engine coming in contact with its car containing the plaintiff and other passengers. . . . That, under such circumstances, the de- fendant was bound to use the highest degree of care and pru- dence, the utmost human skill and foresight, is the settled law. ' ' Ooddington v. BrooMyn Orosstown B. E. Co., 102 JST. Y. 66, 68. In an action to recover damages alleged to have been sus- tained by plaintiff when a passenger upon defendant's road, in consequence of the falling upon him of a clothes- wringer which had beea: placed by another passenger in a ract over plaintiff's seat, the court paid : "In looking out for dangers arising from causes such as this, we do not think that carriers of passengers are to be held to the exercise of the highest care which human vigilance can give. That measure of care has been spoken of as due from them in the actual transportation of the passenger, and, in regard to the results naturally to be apprehended from a failure to furnish safe road-beds, proper machinery, perfect cars or coaches, and things of that nature. But, in regard to a danger of this kind, a carrier of passengers is, we think, held to a less strict measure of vigilance. Reasonable care (to be measured by the circumstances surrounding each case), to pre- vent accidents of this nature, is all that is demanded, . . . " Morris v. N. Y. 0. S H. R. R. R. Co., 106 N. Y. 678, 679. See also Palmer v. Permsylvania Co., Ill N. Y. 488. "The plaintiff had claimed, as the act of negligence for which the defendant was liable to him in damages, that the car, in which he was a passenger at the time, was ' suddenly, negli- gently and carelessly driven around a curve in the track upon which it was being moved over a switch ; ' whereby he was 144 thrown from tlie car and sustained certain personal injuries. The controversy, upon the facts, was as to whether the accident had happened to the plaintiff, as he-alleged and testified ; or whether, as the defendant adduced evidence to show, he was thrown down in attempting to get off the car, while it was in motion. In his charge to the jury the trial judge' had instructed them that the duty owing to the plaintiff was ' that of reasona- ble care ; that is the degree of care which it is presumed that an ordinarily careful and prudent man would exercise in the circumstances by which he is surrounded . . . the degree of ordinary and reasonable "care to look- out for the safety of others. ' At the close of his charge the plaintiff made the re- quest, that he should charge the jury that, ' in respect to carry- ing passengers a railroad company is bound to exercise all the care and skill wiiich human prudence and foresight can suggest to secure the safety of their passengers. ' The court so charged and the defendant excepted. ******* ' ' I think that portion of the charge was erroneous, when taken in connection with the circumstances under which it was made. The jury had already been instructed that the duty owing to the plaintiff by the defendant was to exercise that rea- sonable eare, which an ordinarily careful man would exercise under the eircumstanees by which he was surrounded. But when they were finally instructed, . . . , that the defendant was bound to ' exercise all the care and skill which human pru- dence and foresight could suggest, to secure the safety of its passengers,' they might reasonably infer that the obligation resting upon the defendant, with respect to the degree of care and skill to be exercised at the time of the accident, was as strict as the request made it. But^ that would not be the correct rule. The obligation of carriers of passengers to exercise the highest degree of care, which human prudence and foresight^ can sug- gest, only exists with respect to those results which are naturally to be apprehended froai unsafe road-beds, defective machinery, imperfect cars and other conditions endangering the success of the undertaking. ... In every case, the degree of care 145 to be exercised is dependent upon the circumstances and, if the accident is attributable to the existence of defects in the road, or in the mechanical appliances availed of for the operation of the railroad, by reason of which there was a possibility of loss of life or limb to the traveling public, the Strict rule requiring the highest degree of care and of human skill would be applicable. " • • • Under these circumstances, the defendant was only liable for the failure of the driver to use that skill and care which would be required of an ordinarily careful and prudent man. ^ This the trial judge had correctly charged and hewas in error in charging further as requested by the "plaintiff ; however the rule, as stated in the request, might be correct under dif- ferent circumstances." Sti&rle v. Union RaAlwan/ Co., 156 N". Y. 70, 72. Facts aiid law. — " The court is required to charge the law, and the jury to iind the . facts. The law, however, does not state what facts proved will show the absence of .ordinary care. It couM not do so as applicable to eveiy case which arises. The cases involving this question are so, different in their facts, so various, so complicated, and arising under so many different circumstances, that it would be utterly impossible to lay down any general principle of law by which every special case could be measured and tested as to the fact of negligence, and which would enable the judge to say to the jury, as matter of law, such and such facts show absence or presence of ordinary care./ ' Bridge v. R. B. Go., 25 N. C. 30. ' ' The question whether or not negligence existed is gener- ally a question for the jury (1) when the facts which, if true, would constitute evidence of negligence, are controverted ; (2) where such facts are not controverted, but where there might be a fair difference whether, the inference of negligence should be drawn ; (3) when at the same time the facts are in dispute, and the inferences to be drawn from them are doubtful. In other words, the question of negligence is for the jury when there is substantial doubt as to the facts, or as to the inferences to be drawn from them. When, however, it is assumed that 146 the evidence which is favorable to the plaistifi is true, and no fair inference that the defendant had been guilty of a failure of duty could be drawn from such evidence, the judge should, ac- cording to the practice of the court, decide the case by peremp- tory instructions to the jury." Hathcevoay v. East Termesaee, V. (& G. B. B., 29 Fed. Eep. 489. " There is no fixed standard in thfe law by whi6h a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and wh^ shall .constitute ordinary care, under any and all cirpumstances. . . '. The policy of the law has relegated the .determination of such ques- tions to the jury, -under proper instructions from the court. 'It is their province to note the special circumstances and surround- ings of each particular case, and then say whether the conduct of the parties in thai case was such as would be expected of reasonable, prudent men, under a similar state of aflfairs. When a given ' state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence oT not, the determination of the matter is for the jury. It is only where^ the facts are such that S.11 reasonable men must draw the same conclusions from them, that the question of negligence is ever" considered as ona of law for the courts ' ' Orcmd Trv/rik B'y Co. V. Ives, 144 U. S. 408, 417. " Ifegligence is ordinarily a question for the jury, but only when the facts would authorize a jury to infer it." Button v. N. Y. a t£ H. B. B. B. Co., 66 N". T. 243, 249. " There are, no doubt, cases depending entirely upon ques- tions of negligence, where the proof is' so clear that the court is justified in assuming, as a mattfer of law, that the negligence. is established. But qtiestiohs of that nature are peculiarly appror priate for the consideration of a jury, and courts are very justly cautious about encroaching upon their province in this respect." Moore v. Westervdt, 211S. Y. 103, 106. " The question of negligence depends very much upon cir- cumstances, and is addressed to the judgment of men of ordinary prudence and discretion^ and is ordinarily for the jury. "When the inferences to be drawn from the proof are not certain and 147 incontrovertible it cannot be decided as a question of law by directing a verdict or nonsuit, but must be submitted to the jury. "Negligence is a question of fact and should usually be decided as such, especially whenever men of ordinary prudence and discretion might diEEer as to the character of the act, under the circumstances of the case, the positions and condition of the parties." Thwher v. Harlem B., M. (& F. E. B. Co., 60 ]Sr. T. 326, 331. PBKSTJMPTioifr OF NEGLIGENCE. — As a general rule, negli- gence must be proved, and is not presumed. But there are cases where the maxim res ispa loquitur applies, that is proof of the accident is sufficient to establish negligence in the absence of explanation by the defendant. ' ' As a rule there must be affirmative proof of negligence on the part of the defendant to support an action ; for, where it is a perfectly even balance on the evidence whether the injury has resulted from the want of proper care on the part of one side or the other, the party who founds his claim on the impu- tation of negligence fails to establish it. However, where the actual thing causing the accident is solely under the management of the defendant, and the accident is one which would not, in all probabiKty, happen if the person managing the thing was using due care, it has been held that the mere occurrence of the accident is sufficient ^?r*ma fade proof of negligence to impose on the defendant the onus of rebutting it." Addison on Torts, 21. "While it is true as a general proposition that the burden of showing negligence on the part of the defendant occasioning- an injury, rests in the first instance upon the plaintiff, , when he has shown a situation which could not have been produced except by the operation of abnormal causes, the onus then rests upon the defendant to prove that the injury was caused without his fault." Seybolt v. N. Y. L. E. <& W. B. B. Co., 95 N. Y. 562, 568. " It has been held that where a building adjoining a street 148 falls into the street in the absence of explanatory circnmstances negligence will be presumed, and the burden is placed upon the owner of showing the use of ordinary care ; that where a plain- tiff was passing on a highway under a railroad bridge when a brick fell from one of the pilasters upon which an iron girder of the bridge rested, striking him upon the shoulder, causing in- jury, negligence would be presumed ; that where a person, while walking along the street in front of a building, was struck by a falling chisel, the presumption of negligence is sufficient to call for an explanation ; that where plaintiff was injured while walking on the sidewalk of a street immediately under the de- fendant's railroad by being struck with a heavy piece of metal which fell from one of defendant' scars passing above, that from the nature of the accident negligence might be inferred, etc." Yolkmar v, M. B. Co., 134 K T. 418, 420. See also Hogan V. Mcmhattcm R. Co., 149 K Y. 23. CoNTEiBUTOET HTEGLiGENOE. — " There cau be no recovery of damages if the injured person by his own negligence, or by the negligence of another legally imputable to him, proximately contributed to the injury." lY. Am. & Eng. Enc. of Law, 15. " Contributory negligence, in its legal signification, ~is such an act or omission on the part of a plaintiff^ amounting to a want of ordinary care, as^ concurring or co-operating with the n^li» gent act of the defendant, is a proximate cause or occasion of the injury complained of. ^ To constitute contributory negli- gence there must be a want of ordinary care on the part of the plaintiff, and a proximate connection between that and the in- ■ jury." Beach on Contrib. Neg., 7. Keasoit foe the ettle. — " If both parties are negligent; if the negligence of the plaintiff concurs with that of the defend- ant, both contributing to the result, neither court nor jury are permitted to measure the degree of. contribution, or inquire whether it was the negligence of the one or the other, which was the essential cause of death. " Grvppen-^. N. Y. GenU-al 40 K Y. 34, 61. 149 Care towaeds infirm, aged and young. — " A sick or aged person, a delicate woman, a lame man or a child, is entitled. to more attention and care from a railroad company than one in good health and under no disability. They are entitled to more time in which to get on or off the cars ; they are entitled to more Consideration when crossing a street, to the end that the cars shall not run over them. All these classes are entitled to use the streets and to ride in the cars ; and such haste in start- ing up, or such speed in driving as would be reasonable care toward others, might well be carelessness and neglect toward them." Sheridan v. BrooMyn & Newtown R. JR., 36 N. Y. 39, 42. * Care to be exercised bt such persons. — "In applying the rule that a person who seeks to recover for a personal in- jury, sustained by another's negligence, must show himself free from fault, the law discriminates between children and adults, the feeble and the strong, and only requires of each the exer- cise of that degree of care to be reasonably expected in view of his age and condition. ' ' Reynolds v. N. Y. Oen. (& H. R. R. R. Co., 58 JSr. Y. 248, 252. Doctrine of identification. ^The case of Thorogood v. Rrycm, 8 C. B. 115 (overruled, after standing as authority for almost forty years, in MUU v. Armstrong, L, K. 13 App. Cas. 1), introduced into English law the rule that a passenger in a public coach became so identified with it as to be chargeable with the negligence of those in control ; that is, their negligence was imputed to him as contributory fault, so as to preclude recovery for an injury occasioned by the concurring negligence of a stranger. Such, however, is not the law in New York, and was criticised by Mr. Justice Field, in Little v. Hadkett, 116 U. S. 366, 375 : " The truth is, the decision in Thorogood v. Bryam, rests upon indefensible ground. The identification of the passenger with- the negligent driver or the owner, without his personal co-operation or encouragement, is a gratuitous as- sumption. There is no such identity. The parties are not in 150 the same position. The owner of a public conveyance is a car- rier, and the driver or the person managing it is his servant. Neither of them is the servant of the passenger, and his asserted identity with them is contradicted by the daily experience of the world." In Barrett v. ThvrA Ave. R. R. Co., 45 N. Y. 628, the plaintiff was injured while riding as a passenger in a car of the defendant's, resulting from a collision with a freight car of the Harlem Railroad Company, at a point where the two roads in- tersected. The court (p. 630) said: " There was no question of contributory negligence on the part of the plaintiff ; she was injured without fault on her part, ^nd the question upon the merits was, whether the collision causing the injury was exclu- sively the result of the negligence or careless acts of the agents and servants of the defendant having the control and manage- ment of the car in which the plaintiff was a passenger, or of such negligence in connection with negligence on the papt of those in charge of and controlling the movements of the collid- ing car on the Harlem road. If the acts of the defendant's ser- vants contributed to the injury, the defendant must respond in damages to the plaintiff, although the negligent acts of the per- sons in charge of the other car also contributed to the same re- sult, and the comparative degree in the culpability of the two will ndt affect the liability of either. If both were negligent in a manner and to a degree contributing to the result, "they are liable jointly and severally. (Webster v. Hudson River R. R. Co., 38 KT. 260.)" In Robinson v. JV. Y. O. di S. R. R. R. Oo., 66 N. T. 11, the plaintiff had accepted an invitation to ride with one Conlon, and while so riding received injuries resulting from a collision, at a railroad crossing, between the buggy, in which she was riding, and a train on defendant's road. The court (page 12) said: "The court charged the jury that if the de- . fendant was negligent, and the plaintiff was free from negli- gence herself, she was entitled to recover although the driver might be guilty of negligence which contributed to the injury. " In determining this question it is important to first ascer- 151 tain the relation which existed between the plaintijQEand-Conlon, the driver. It is very clear, and was found by the jury, that the relation of master and servant did not exi^t. Nor was Con- Ion, in any sense, the agent of tie plain tiff r ... It is, therefore, the case of a ^ratnitons^ride by a female upon the in- vitation of the owner of a horse, and carriage. The plaintiff had no control of the vehicle, nor, of the driver in its management. It is not claimed but that Conlon was an able-bodied, competent person to manage the establishment, nor that he was intoxicated, or in any way unfit to have charge of it. . Upon what principle is it that his negligence is imputable to the plaintiff ? It isxson- ceded that if by his negligence he had injured a third person, she would not be liable. '. . \ True, she had consented to ride with him, but as he was in every respect competent and suitable, she was not negligent in doing so. . . . There was no necessity for riding with him. Ij was a voluntary act on the part of the plainttff, but it was not an unlawful or negli- gent act. She was injured by the negligence of a third person, and was free from negligence Tierself, and I am unable to per- ceive any reason for imputing Conlon's, negligence to her. ' ' If his negligence contributed to the injury, he is liable also to an action, but that does not exonerate the defendant. These views proceed, of course, upon the assumption that there was no relation of principal and agent, or ma&ter and servant. Nor were they engaged in a joint enterprise in the sense of mutual responsibility for e^ach other's acts, as in Beoh V. East Ri/oer Ferry Compcmy (6 Hobertson, 82). ' ' In Donnelly Y. Brooklyn City.B. B. Co., 109 N. Y. 16, the plaintiff, with one McNally, had driven from Fort Hamil- ton to Brooklyn, in a wagon drawn by one horse with a load of fish for market. They returned about midnight along an avenue in the middle of which were two tracks of the defendant, with a dirt road on each side for wagQUs. McNally was driving and the plaintiff was sitting by his side. They had been on the right-hand track, when hearing a wagon approaching, which they thought was loaded, they turned and drove upon the other track, upon which they were when they were run down by an 153 engine of the defendant, and the plaintiff received his injaries. The court (p. 22) said : " We think the plaintifE was chargeable with the neglect of his comrade. He was conscions of the danger and apparently made no objection or effort to avoid it. He was engaged in a common employment with McNally. He had full control of his own actions, and, though on the safe track, did not object when, after telling McNally to turn out, they turned upon the dangerous track." In BricTcell v. N. T. C. cfe H. R. E. JR. Co., 120 N. T. 290, the plaintiff had paid the driver of a single horse and wagon to carry him from one place to another, and, while riding and occupying the same seat with the driver, sustained injuries from a collision between the wagon and an engine of the de- fendant at a highway crossing of defendant's road. The court (p. 293) said : "The rule that the driver's negligence may not be imputed to the plaintiff should have no application to this case. Such rule is only applicable to cases where the relation of master and servant or principal and agent does not exist, or where the passfenger' is seated iaway from the driver or is sepa- rated from the driver by an enclosure and is without oppor- tunity to discover danger and to inform the driver of it. {Rob- inson V. N. Y. O. (& S. R. R. R. Co., 66 N. Y. 11.) " It is no less the duty of the passenger, where he has the opportunity to do so, than of the driver, to learn of danger and avoid it if practicable. " The plaintiff was sitting upon the seat with the driver, with the same knowledge of the road, the crossing and environ- ments, and with at least the same, if not better, ^opportunity of discovering danger that the driver possessed and without any embarassnient in communicating them to him. " The rule' in such case is laid down in Sbag^v. JV. JT. C. i& M. R. R. R. Co. (Ill N. Y. 199), where husband and wife were sitting upon the same seat in a vehicle driven by the hus- band, and both were killed by a collision at a crossing, and in an action brought by the administratrix of the wife against the railroad company it was held ' that she had no right, because 153 her husband was driving, to omit some reasonable and prudent effort to see for herself that the crossing was safe.' " Imputation of negligence of custodians to peesons non sui JURIS. — "In actions brought ty or in behalf of children, idiots, lunatics, or other persons non sui juris, for injuries to which the negligence of their legal custodians contributed, the question has arisen, whether or not, upon the theory of agency or identity, such contributory negligence on the part of the par- ent or guardian should be imputed to the plaintiff in bar of the action. Upon this question the courts have not been able to agree. It is held in many jurisdictions in this country, that such negligence is justly to be imputed to an infant plaintiff, while in others it is strenuously denied." Beach on Contributory Negli- gence, 2d ed., §116. "For one or the other reason, or no reason, this rule of imputed negligence seems to be at present established in New York, Maine, Massachusetts, Delaware, Maryland, Indiana, Minnesota, Kansas, end California." Shearman & Eed. on Neg., 6th ed., §74. ' ' The better rule, that in such an action, by or on behalf of an infant, the negligence of parent or guardian is not to be so imputed, prevails in Pennsylvania, Yirginia, Yermont, Ala- bama, Tennessee, Ohio, Connecticut, Missouri, Nebraska, Texas, New Hampshire, Iowa, Mississippi, Georgia and New Jersey. ' ' Beach on Cont. Neg., 2d ed., § 130. The new toek eule. — In New York it is maintained tha* the negligence of the custodian must be imputed to a plaintiff non suijv/ris, and the leading authority is Hwrtfield v. Roper ^ 21 Wendell, 615. In that case a child about two years of age was in the highway, some distance from home and unattended, when it was run over by the horses of the defendant, who failed to see the child before it was injured, and the court (p. 618) said: "Was the plaintiff guilty of negligence? His counsel seemed to think he made a complete exception to the general rule demanding care on his part, by reason of his extreme in- 154 fancy. Is this indeed so? A snow path in the public highway, is among the last places in this country to which such a small child should be allowed to resort, unattended by any one of suit- able age and discretion. The custody of such a child is confided by law to its parents, or to others standing in their place ; and it is absurd to imagine that it could be exposed in. the road, as this child was, without gross carelessness. . It is the extreme of folly even to turn domestic animals upon the common highway. To allow small children to resort there alone, is a criminal neg- lect. It is true that this confers no right upon travelers to com- mit a vofimioT-y *w;i«/^ upon either ; nor does it warrant ^ross neglect; but it seems to mti that, to make them liable for any thing short of that, would -be -contrary to law. The child has a right to the road for the purposes of travel, attended by a proper escort. But at the tender age of two or three years, and even more, the infant cannot personally exercise that, degree of discretion, which becomes instinctive' at an advanced age, and for which the law must make Jhim responsible, through others, if the doctrine of mutual care between the par- ties using the road is to be enforced at all in his case. It is perfectly well settled, that, - if the party injured by a collision on the highway has drawn the mischief upon himself by his own neglect, he is not entitled to an action, even though he be lawfully in the highway pursuing his travels, BathBun V. Payne, 19 Wendell, 399, Bit^cle v. N. Y. Dry Dock Company, 2 Hall,' 151, which can scarcely be said of a toppling infant, suffered by his guardians to be there, either as a traveler or for the purpose of pursuing his sports. The appli- cation may be harsh when made to small children, as they are known to have no personal discretion, common humanity is alive to their protection; but they are not, therefore, exempt from the legal rule, when they bring an action for redress : and there is no other way of enforcing it, except by requiring due care at the hands of those to whom the law and the necessity of the case has delegated the exercise of discretion. An infant is not svAjv/ria. He belongs to another, to whom discretion in the care of his person is exclusively confided. That person is keeper 155 and agent for this purpose ; and in respect to third persons, his act must be deemed that of the infant ; his neglect, the infant's neglect. " ' ' ' The principle of this case {Hartfield v. Roperl has been since its determination often applied by the courts of this State to analogous cases, and taust now be regarded as the settled law, notwithstanding 'a somewhat different rule prevails in some of the other States." JI