the "owner" determines the right of occupation.

At this point it becomes necessary to ex amine with more particularity into the precise status of the lease after forfeiture. Thus far we have assumed that it remains in force until the owner, during his ownership, takes advantage of the forfeiture, and determines the right of possession. We have said that the owner may waive the forfeiture. But the statute says the right under the lease is forfeited. The old statute said that it is annulled and made void. Is the statute to be construed as making the lease absolutely void and of no effect whatever, whether the owner takes advantage of it or not? If so, it may follow that if the tenant remains after the forfeiture, with consent, express or implied, of the landlord, he remains as tenant at will, and that forcible entry and detainer will lie after 30 days' notice, such as was given in this case. And if the tenancy becomes thus a tenancy at will, by force of the statute forfeiture, and the lease is no longer in effect, then, of course, the grantee of the landlord, finding a tenant at will in occupation of the premises, may elect to regard the tenancy as terminated by the alienation, and bring forcible entry and detainer without giving the 30-days notice (Seavey v. Cloudman, 90 Me. 536); or he may give the notice, and then bring his action. The plaintiff in this case seems to have proceeded upon the theory that the defendant was a tenant at will, merely, at the time of the alienation, and he gave the statutory notice.

If this construction of the statute is the correct one, what will be some of the consequences? The first and foremost one, and the only one we need to notice, will be to deprive the statute of much of its apparent beneficial effect-so much so that the court may well pause and inquire whether the Legislature intended such an effect. Unless the forfeiture becomes effective only by some act of the lessor taking advantage of it, such as entry or notice or suit within 7 days, under chapter 94, it must become effective by some act of the tenant, and that act must be the act causing forfeiture. If that be so, the lease is forfeited, and the rights under it are ended by the act of forfeiture. The only summary remedy of the landlord, howeverthe only remedy which involves no notice and no delay-is forcible entry commenced within 7 days after the forfeiture. But it is safe to say that innocent landlords, for whose benefit, in part, at least, the statute was enacted, ordinarily do not and cannot know within 7 days that forfeiture has been incurred. They are therefore remitted to a slower and waiting process. If not able to bring action within 7 days after forfeiture, they must give 30 days' notice before suit, unless the forfeiting tenant can be regarded as a disseizor, and we think he cannot be so regarded merely because of the forfei

ture. This construction certainly robs the statute of much of its supposed efficacy.

The inquiry suggests itself in this connection, whether the Legislature did not intend to give to the word "forfeited" and the phrase "make void" the same meaning and effect which the common law gives to similar expressions in leases. We think such was the intent. "The modern decisions," says Mr. Taylor in the work on Landlord and Tenant, § 492, "establish that the effect of a condition, making a lease void upon a certain event, is to make it void at the option of the lessor only in cases where the condition is intended for his benefit, and he actually avails himself of his privilege." The editor of the Am. & Eng. Ency. of Law lays down the doctrine (book 18, p. 380, 2d Ed.), which seems to be supported by the authorities cited, that the construction of provisions for forfeiture of a lease for nonperformance by the lessee of conditions is that the lease is voidable only at the election of the lessor, and is not rendered absolutely void, though it provides that it shall be null and void in case of such breach. And this rule applies to leases by the crown, and when the provision is by statute (page 381).

That such a construction is the one properly to be given to a statute like the one under consideration has been decided by the courts of other states in well-considered opinions. In Rhode Island a statute phrased in almost the identical language used in our act of 1858 was under consideration. The court said: "We think that under Gen. St. R. I. c. 73, § 4 [the statute in question], a mere use of leasehold premises for the purposes prohibited in section 1 [like Rev. St. c. 17, § 1] does not, ipso facto, render the lease absolutely void, but that section 4 was intended for the benefit of the lessor, and that he alone can take advantage of the avoidance, at least unless he has been cognizant of the illegal use and has consented to it." Almy v. Greene, 13 R. I. 350. The case of Trask v. Wheeler, 7 Allen, 109, is on all fours with the one at bar. In it the lessor had conveyed the premises after forfeiture had been incurred under a statute like our Rev. St. c. 17, § 3, and the grantee sought to take advantage of the forfeiture in his action to recover possession. The court said: "If it were to be held that the lease is thus made void, against the will of the landlord, any tenant desiring to get rid of his lease might do so simply by violating the statute. The provision must be regarded as made for the benefit of the landlord, who may avail himself of it, but is not obliged to do so. Though the lease is declared void, yet it belongs to the class of things which are said to be void only as to some persons. Bac. Ab. Void and Voidable,' B. The landlord had a right to treat it as void, and to enter and expel his tenant. But he might also refrain from this exercise of his rights, and, so long as

he did so refrain, the lease would continue to be valid against the tenant and all other persons; and it would continue valid till he should do some act to avoid it."

We are entirely satisfied with this expcsition of the law. We think it is the only reasonable and proper interpretation of the statute. It follows that the lease was in force at the time of the sale to the plaintiff, and he could not oust the defendant for a forfeiture under Rev. St. c. 17, § 3, which occurred before he became owner, and of which the former owner had taken no advantage. The same result would follow, were we to consider the provision in the lease concerning the sale of intoxicating liquors. The lessor might have had the right to enter, and expel the lessee, and terminate the tenancy, but he did not do so.

2. The plaintiff also contends that the lease was terminated by the parties to it under that clause which stipulated that "if either party should see fit to terminate this lease before it expires he shall pay the other fifty dollars." It is not denied that, by a proper construction of this clause, either party had a right to work a termination of the lease by paying $50 to the other. The only question is whether the lease was so terminated. And here, also, the plaintiff fails in proof. Watts, the lessor, testified that he paid the defendant $50 for the purpose of terminating the lease. This is now denied. It is true, the defendant was not asked to testify upon this point. But we think that he might be well content to stand upon the evidence put in by the plaintiff. A careful examination of the evidence leads us to conIclude that whatever payment Watts made to the defendant was made August 22d, three days after this suit was commenced, when Watts and the defendant settled their mutual accounts, and that it is highly improbable, notwithstanding the testimony of Watts, that any payment was then made to terminate the lease. If the payment was made August 22d, though in other respects made as claimed by the plaintiff, it would not support an action brought August 19th. But however this may have been, Watts then was not the owner of the premises, and, so far as appears, had no interest in the lease. Unless he had such interest, or unless he was acting for the owner, of which there is no proof, he no longer had authority to terminate the lease by payment. He could not by his acts control or affect the lease. It should be said, also, that we do not think the evidence shows that the defendant assented to any termination of the lease.

The defendant, therefore, is entitled to judgment. That being so, it is agreed by the parties that the law court shall assess the damages, and determine whether justice requires a writ of restoration to issue. The case shows that after the trial justice had rendered judgment for the plaintiff, and the defendant had appealed and recognized to the

plaintiff as provided in Rev. St. c. 94, § 8, the plaintiff recognized to the defendant as provided in section 9 of the san e chapter. Thereupon the trial justice issued a writ of possession, which was executed, and the defendant and his property by means of the writ removed from the premises August 27, 1901. It also appears that subsequently, in August, 1902, the hotel which was the subject of the lease was destroyed by fire. It is clear, therefore, that justice does not require a writ of restoration to issue, but the contrary.

In assessing damages for the unwarrantable eviction of the defendant, it must be considered that his legal rights under the lease now exist in full force, and will continue for the full term of the lease, or until April 3, 1905, unless sooner terminated in accordance with the provisions of the lease. The court may suppose that the plaintiff, upon being advised of his liability, will avail himself of his contract right to terminate the lease by the payment of $50, but we cannot know judicially that he will do so. The damages, therefore, should be assessed in the alternative.

The measure of damages is what the use of the premises may be deemed reasonably worth from the date of eviction to the end of the term, or to the termination of the lease otherwise. The ordinary rule is to allow the difference between the rental value of the premises for the term and the rent reserved. 3 Sedgwick on Damages, §§ 944, 1022. The burden is upon the defendant. He can recover no more damages than he has proved. In this case, for want of data, it is difficult to estimate what was the reasonable worth of the legitimate use of the premises.

The defendant, perhaps to his disadvantage now, kept no books of account. He relies upon estimates chiefly. Into these estimates have crept, we think, some elements not proper for consideration, such as the income he received for carrying the mail under an independent contract, and his own personal labor and the labor of others in his family, which belonged to him, and it may be other matters. It is to be presumed that he still has the benefit of his own labor and that of his family, so far as it belongs to him.

Taking into account all the considerations which arise in the case, the court is of opinion that the defendant is entitled to recover damages at the rate of $20 a month.

No allowance is to be made on account of the burning of the hotel. Non constat that it would have burned if the defendant had been allowed to retain possession. The plaintiff took the responsibility of ousting the defendant. He took the possession of the property into his own hands, and he must now be held accountable for the use of it as it was when he took it.

Judgment for defendant. No writ of restoration to issue. If the plaintiff shall, within 30 days after rescript is filed, terminate

the defendant's tenancy by paying $50 to the clerk for the use of the defendant for that purpose, defendant's damages are assessed at $20 a month from August 27, 1901, to the time the tenancy is so terminated; otherwise defendant's damages are assessed at $20 a month from August 27, 1901, to April 3, 1905. Judgment and execution accordingly.

(97 Me. 343)

McGRAW v. GREAT NORTHERN PAPER

CO.

(Supreme Judicial Court of Maine. Feb. 28, 1903.)

INJURY TO EMPLOYÉ PLEADING-DECLARATION-SPECIAL DEMURRER-NEGLI

GENCE-MACHINERY-BARKER.

1. In a declaration to recover for injuries claimed to have been received by plaintiff in defendant's pulpmill while operating a machine called a "barker," an allegation, "that said barker was then and there defective and dangerous, and was out of repair, so that the operation of said barker was then and there attended with great dangers and hazards," is too general and indefinite.

2. Where the injury complained of is charged to the falling of the "attachment" of the barker, the declaration should contain some allegation that the attachment was defective, or to show that falling was not its normal action. (Official.)

Exceptions from Supreme Judicial Court, Androscoggin County.

Action by John J. McGraw against the Great Northern Paper Company. Demurrer to declaration overruled, and defendant excepts. Exceptions sustained.

Case brought by plaintiff to recover damages for an injury suffered by him while employed in defendant's pulpmill at Madison on or about September 13, 1901. At the return term of the writ, defendant filed a special demurrer, which was joined, but no hearing was then had thereon. At a succeeding term of the court at nisi prius the demurrer was heard by the presiding justice and overruled, and defendant then noted an exception. In overruling the demurrer the presiding justice gave notice that, if requested, he should require the plaintiff to file a specification of what acts or omissions or conditions he relied upon as showing the defendant to be negligent. Subsequently the plaintiff filed a specification. The defendant, however, insisted upon its exceptions, and seasonably presented the same, which were allowed and filed.

Plaintiff's declaration was as follows:

"In a plea of the case, for that the said defendant corporation on the 13th day of September, 1901, and for a long time prior thereto, was the owner and operator of a certain mill in said Madison, used for the manufacture of pulp, and that in said mill at said time the said defendant corporation owned and operated certain machines and machinery, with their appurtenances and appliances, run by water power, and particularly a certain machine called a 'barker,' which was

used by said defendant for the purpose of peeling or shaving bark from certain sticks of wood; and the plaintiff avers that on the 13th day of September, 1901, and for a long time prior thereto, he was an employé and servant of said corporation for wages and hire, and on said 13th day of September he was set to work by said defendant upon said barker to use and operate same in the shaving of bark as above described; and the plaintiff avers that he was then inexperienced in the use and working of said barker, and that said barker was then and there defective and dangerous, and was out of repair, so that the operation of said barker was then and there attended with great dangers and hazards, all of which were well known to said defendant, and was not known to said plaintiff; and the plaintiff further avers that he was set to work on said barker then and there by said defendant without any instructions as to how to operate said barker, and without any warning or information as to the dangers and risks attending the operation of said barker, and without any instructions, information, or warning as to the defective condition of said barker, and as to its being out of repair, and the plaintiff further avers that while he was there operating said barker, and while in the exercise of due care, and without fault on his part, the attachment on said barker suddenly fell and caught the right hand and arm of the said plaintiff, and drew the same with great force and violence into certain revolving knives in said barker, thereby lacerating, cutting, and mutilating the said plaintiff's hand so that the hand and part of the said plaintiff's arm had to be amputated, whereby the plaintiff has suffered great pain, and has been permanently injured in the loss of his hand and arm, and has been put to great expense for medicine and medical treatment, whereby an action hath accrued to the plaintiff to have and recover from said defendant his damages in this behalf sustained, to the damage of the said plaintiff, as he says, the sum of ten thousand dollars."

Plaintiff's motion to amend was as follows: "And now comes the plaintiff in the aboveentitled action, and asks leave to amend the declaration in his writ by adding after the word 'barker,' in the thirty-first line of said declaration, the following words, to wit: 'by reason of its defective condition and want of repair.'

Defendant's special demurrer was as fol

lows:

"And now the defendant comes and defends and demurs to the plaintiff's declaration, and says that said declaration is not sufficient in law, and for special cause of demurrer says:

"That said declaration is insufficient for the following reasons:

"Because the plaintiff does not allege what duty the defendant was under to the plaintiff, or that it was under any duty.

"Because the plaintiff does not allege wherein the machine of which he complains was defective or out of repair, or wherein it was dangerous, or whether its danger was because of its defective condition.

"Because the plaintiff does not allege wherein the defendant was negligent.

"Because the plaintiff does not allege wherein the machine called a 'barker' was dangerous, or attended with great danger, or whether in perfect condition said machine was so dangerous.

"Because the plaintiff does not allege that the injury to him was because of any negligence of the defendant.

rected. There may be cases of a complicated machine, where it may not be practicable, or even possible, to allege with certainty the identical defect causing the injury; but even in such case it may be stated in sufficiently specific terms to indicate to the defendant the charge he is called upon to meet, or the difficulty may be obviated by several counts, with such variations as circumstances may require.

In this case the injury is charged to the falling of the attachment, and not to anything else, but it is not alleged that the attachment was in any manner defective. There certainly could be no difficulty in alleging, if true,

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, and SPEAR, JJ.

D. J. McGillicuddy and F. A. Morey, for plaintiff. C. E. & A. S. Littlefield, for defendant.

STROUT, J. This is an action on the case for an injury suffered by plaintiff while in defendant's employ. A special demurrer to the declaration was filed and overruled, and the case is here upon exceptions to that ruling.

The declaration alleged that plaintiff was set to work upon a machine called a "barker," and the defendant is charged with negligence, in "that said barker was then and there defective and dangerous and was out of repair, so that the operation of said barker was then and there attended with great dangers and hazards."

It is objected that this allegation is too general, and fails to point out the defect in the machine which caused the injury. We think the objection is well taken. There is no specification of any particular defect in the barker, nor of any special danger in its operation. It is alleged that while the plaintiff was operating it "the attachment on said barker suddenly fell and caught the right hand and arm" of plaintiff, and inflicted the Injury complained of. There is no allegation that this attachment was in any manner defective, nor that such falling was not its normal and intended action. For aught that is alleged, the attachment may have been in perfect order, and its fall may not have been the result of any fault in the barker, or the barker may have been defective in some particular which did not cause or contribute to the fall of the attachment. The declaration fails to apprise the defendant of the particular fault complained of, or the specific negligence which resulted in the injury.

Good pleading requires in such case a definite statement of the particular defect, so far as it may be practicable to state it, which caused the injury, to the end that the defendant may know what claim he is to meet, and to which the evidence is to be di

ive and out of repair, or whether it fell as the result of any imperfection in the barker itself. The declaration should state the facts-the actual condition of the machine and attachment-and from these facts the jury are to determine whether it was defective or not. The allegation here is too general and indefinite to comply with legal requirements. Boardman v. Creighton, 93 Me. 23, 44 Atl. 121.

The exceptions are to the overruling the demurrer. Consequently the specifications subsequently filed, or the amended declaration offered, but not allowed, cannot be considered.

Exceptions sustained; demurrer sustained; declaration adjudged bad.

(97 Me. 319)

RAMSDELL v. GRADY. (Supreme Judicial Court of Maine. Feb. 13, 1903.)

PHYSICIAN-NEGLIGENCE-DAMAGES.

1. A physician who fails to exercise reasonable care and diligence in the treatment of his patient is liable for malpractice, and in finding the defendant thus liable in this case it is not clear to the court that the jury erred.

2. The defendant undertook the case of the plaintiff's intestate on Monday. The patient died on the following Saturday. The only damages of any amount which the deceased sustained were those resulting from mental and bodily pain. In an action by his administratrix it is held that under the evidence in this case a verdict of $3,000 is unmistakably too large.

3. Only such damages can be allowed as the deceased sustained in his lifetime. Nothing can be allowed for his loss of life, nor for what he might have earned had he lived longer.

4. Damages in such a case can include only such loss, expense, and suffering as was due to the defendant's default in excess of what they would have been had the case been properly diagnosed and treated.

(Official.)

On motion from Supreme Judicial Court, Washington County.

Action by Abbie D. Ramsdell, administratrix, against James B. Grady. Verdict for plaintiff. Motion for new trial. Overruled.

Action on the case, brought to recover damages on account of the negligence of the de

4. See Physicians and Surgeons, vol. 29, Cent. Dig. 46.

fendant, a physician, in the treatment of the plaintiff's intestate, Henry F. Ramsdell, during his last sickness, which commenced on Saturday, November 24, 1900, and terminated fatally on Saturday, December 1, A. D. 1900.

The plaintiff's contention was that the disease from which Mr. Ramsdell suffered and died was diphtheria; that it was a typical case, having all the characteristic symptoms; that it was not a disease difficult to diagnose; that it should have been discovered by physicians of ordinarily good standing as to their qualifications, and who, in the care and treatment of the case, exercise that diligence, care, and attention that the seriousness of such a case called for and required; that the defendant, as a physician, treated plaintiff's intestate, Mr. Ramsdell, from Monday, November 26th, until the latter part of the following Friday afternoon, and, although he saw Mr. Ramsdell seven times during the five days that he treated him, did not discover the presence of diphtheria, and consequently did not treat him for diphtheria; that on Friday night, after having treated him for five days, he sent him from Eastport to the Eastern Maine General Hospital in Bangor, a distance of 135 or 140 miles, in the nighttime, in the winter, unattended by a physician or nurse, for the purpose of having a surgical operation performed upon his throat; that on account of his failure to discover the disease from which he was suffering, and to administer the proper treatment for it, and on account of sending him from Eastport to Bangor in such condition, he not only suffered great pain, but that he suffered a great deal more than he otherwise would had the defendant discovered the presence of diphtheria when he should have discovered it, and administered the proper and well-recognized and universally adopted remedy for that disease.

The case was tried to a jury, who returned a verdict for the plaintiff of $3,000.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and SPEAR, JJ.

F. J. Martin, H. M. Cook, G. M. Hanson, and A. St. Clair, for plaintiff. W. R. Pattangall, L. D. Lamond, and G. A. Curran, for defendant.

SAVAGE, J. Case against physician for negligently and unskillfully diagnosing the disease with which the plaintiff's intestate was ill, and of which he died, and for negligent and unskillful treatment of the same. After a verdict for the plaintiff the case comes here on motion for a new trial. The grounds relied upon are that the verdict is contrary to the evidence, and that the damages awarded are excessive.

1. The plaintiff contends that her intestate was ill with diphtheria; that the defendant was called as attending physician; that he should, by the exercise of reasonable skill and care, have diagnosed the case as diph

theritic, but that he negligently and unskillfully failed to do so, or to administer proper treatment, in consequence of which the patient became increasingly ill, and died five days after the defendant was first called. It appears that the defendant was first called on Monday, and treated the case during the week until Friday afternoon, when the patient, upon his recommendation, was taken from his home in Eastport to a hospital in Bangor, where he died Saturday afternoon. It is claimed that even the removal of the patient was improper under the circumstances.

The defendant contends that the disease was not diphtheria, or, if it was, that it did not present any apparent symptoms of diphtheria; that, if it was diphtheritic at all, it was laryngeal, and of a kind the distinctive symptoms of which might not be discoverable by the diagnosis of an ordinarily skillful and careful physician; and the defendant contends that in all respects he exercised reasonable care and skill.

No questions of law are in dispute. The liability of a physician for malpractice is based upon his implied agreement with his patient that he possesses the ordinary skill of a physician under like conditions, that he will use his best skill in determining the nature of the malady and the best mode of treatment, and that he will exercise reasonable care and diligence in the treatment. Patten v. Wiggin, 51 Me. 594, 81 Am. Dec. 593; Cayford v. Wilbur, 86 Me. 414, 29 Atl. 1117. The facts are seriously in dispute. There is much evidence upon both sides. analysis of it here would not be useful. It is sufficient to say that it has not been made to appear that the jury manifestly erred concerning the defendant's liability. The verdict in that respect must stand.

An

2. But the amount of damages awarded is, we think, unmistakably too large. The counsel do not disagree as to the rule of damages. Only such damages can be allowed as the deceased sustained in his lifetime. Nothing can be allowed for his loss of life, nor for what he might have earned had he lived longer. The administratrix is entitled to recover, for the benefit of the estate, such damages as the deceased suffered up to the last moment of his life, and no longer. These principles are regarded as well settled, notwithstanding some dicta apparently to the contrary in Welch v. Maine Central R. R. Co., 86 Me. 552, 30 Atl. 116, 25 L. R. A. 658. See Bancroft v. Boston & Worcester R. R. Corp., 11 Allen, 34; Kennedy v. Standard Sugar Refinery, 125 Mass. 90, 28 Am. Rep. 214; Clark v. Manchester, 62 N. H. 577. This rule may include loss of earnings, though in this case that was inconsiderable. It does include expense to which the deceased was put, or for which he became liable, on account of the wrong of the defendant. It also includes mental and bodily suffering up to the moment of death. It only includes,