페이지 이미지

words discloses a difference in signification, and wagon, and thus constituting a team, do not come that difference is perhaps more recognizable when under the designation of live stock. The word these terms are applied to the law or to medical stock, as employed in agriculture, means, accordscience. "To show' is to make 'apparent or clear ing to Webster, domestic animals or beasts collected, by evidence, to prove, whilst an indication' may

be used or raised on a farm; as a stock of cattle or of merely a symptom, that which points to or gives sheep - called also live stock. Now, whilst it may direction to the mind."

be admitted that the term stock does not embrace ALLEY-WAY.— In Hacke's' Appeal, Pennsylvania the idea of a team, it cannot, nevertheless, be deSupreme Court, January, 1884, the court said: “An nied that the term team embraces the idea of live alley-way has a clear and distinct meaning. It is stock. The word team means two or more horses, a way of less than the usual width of a street. It is oxen or other beasts, harnessed together to the same generally understood to be an open and unobstructed vehicle for driving. A team therefore is composed way. An order to open and provide an alley-way, of live stock, and cannot exist without it. It would is not fulfilled by providing a passage-way through be exceedingly technical to hold that two horses, which a person may pass by opening and closing when harnessed and hitched together to a wagon, doors and gates. Such means of passage are not cease to fall under the designation of live stock." within the reasonable and natural understanding of RUNNING AT LARGE. — - A team of horses running an alley-way." So it was held that an order to open

away are “running at large.” In Inman v. Chicago, and provide an alley-way is not fulfilled by provid- etc., R. Co., 60 Iowa, 459, the court said: “The ing a passage-way over the land where the alley appellant further insists that the team was not should be, through a store-room, along which a running at large, as contemplated in the statute. person may pass by opening and closing doors and In Welsh v. C. B. & Q. Ry Co., 53 Iowa, 632, it gates.

was held that the jury was warranted in finding PASSENGER SHIP.— A steam-tug, carrying a number that a horse was running at large which had on a of guests gratuitously on a pleasure trip on a single bridle with the rein over his head, and a halter rope occasion is a passenger ship,” and liable to the which was untied and dragging. In that case an penalty under the Merchant Shipping Act for not instruction, as follows, was approved: The words, having a certificate. Board of Works v. Kidstone, running at large,' as used in the statute, import Ir. Q. B. Div., January, 1884. The court said: that the stock are not under the control of the “Neither does the fact of the ordinary employment owners; that they are not confined by inclosures to being that of a tug-boat affect the question now for à certain field or place, nor under the immediate our decision. It is the user and employment of the care of a shepherd or herdsman; that they are left vessel on the particular occasion which impresses to roam wherever they may go. But where an aniher character on her at the time of that user and mal escapes from the control of the owner, and can employment.” O'Brien, J., dissenting, observed: not be caught by the owner, then such animal would “What is the ordinary sense of the words? A per- be running at large within the meaning of the son going by a railway or a stage coach, or a steamer, statute.' We are content with the doctrine ananywhere, and paying his fare, would be called a nounced in the foregoing case. Under it there can passenger; but a person going out in a yacht or in a be no doubt that the horse in question in this case private coach would not usually, at all events, be so was running at large when it received the injury spoken of, just as a person who stopped at his complained of.” friend's house would not be called a lodger, though ABIDE. – To " abide " the order of the court he was lodged. The whole foundation of

means to obey. In Jackson v. State, 30 Kans. 88, the the argument for the Board of Trade, as it appears court said: “Now the word 'abide,' as used in the to me, rests upon the error that lurks in the mean- statute, means obedience, compliance. In Hodge v. ing given to the use of the word carry' in the Hodgson, 8 Cush. 297, Shaw, chief justice, in an 303d section. To carry is a term so common in action on a similar bond, uses these words: We the law as to have a defined meaning. It means have already said that the condition of the defendcarriage for profit. A person that carries is a car- ant's original obligation was to abide the final order rier, and in the idea of a carrier hire is always in- of the court. To 'abide,' we think, as used in this cluded. Persons who are on board a ship by per- statute, is to perform,' to 'execute,' to 'conform mission are not carried in a legal sense — they are to,' such order. Taylor v. Hughes, 3 Greenl. 433.'"

APPENDAGE. A well may be an appendage to a right to remain, they have no regular destination, school-house. In Hemme v. School District, 30 Kans. they may be put out anywhere. The law gives them 377, the court said: “Section 25, article 4, chapter no right of action for negligence. They are on 122 of the Laws of 1876 (Comp. Laws of 1879, p. board without any right or contract whatever, their 830), provides that 'the district board shall provide legal presence perishes at any moment at the will of the necessary appendages for the school-house dur. the owner."

ing the time a school is taught therein. Unless this LIVE STOCK.— A team of horses may be “live language can be construed so broadly as to authorstock.” In Inman v. Chicago, etc., R. Co., 60 Iowa, ize the school board to construct a well, or a fence, 459, the court said: “The appellant insists that the or a privy upon the ground supon which the schoolhorses in question, harnessed and hitched to a. house is situated, it would seem that neither the


not passengers, they are licensees

. They have no to:

board nor the school district itself has any authority STATUTORY CAPACITY OF HUSBAND AND to construct any such improvements. We would there

WIFE TO CONTRACT TOGETHER. fore think that the Legislature must have used the

HE word ' appendage'in said section 25, and also in sub

ecutory contracts or contracts proper; (2) executed division 5, section 11, article 3, of said chapter, in a contracts or transfers; (3) and transfers without convery broad and comprehensive sense, and intended to sideration, or gifts. include these improvements, as well as many other

Under the unwritten common law contracts between things which might come within the general defini- husband and wife are absolutely void at law, because

a wife has no capacity to contract at all, and because tion of 'appendages.' Webster defines the word husband and wife being one, any contract between

appendage' as 'something added to a principal or them is void for want of parties. (1) But in equity greater thing, though not necessary to it, as a por- where the duality of husband and wife has always been tico to a house.' Worcester defines the word as

recognized and where a wife has always had a limited

capacity to contract as to her separate property, consomething added, attached, or annexed; a con

tracts botween husband and wife it equitable are comitant.' As before stated, we think the word valid. (2) Such contracts are not however discussed ought to be construed broadly, so as to include a in this article, but only the validity of contracts as far well constructed on the same premises on which the as respects capacity between husband and wife under

statutes. school-house is situated."

The statute tbe effect of which is in question may PRESENT TIME.— In State v. Rose, 30 Kans. 501, refer (1) expressly to contracts between husband and the court said: "'Present time' usually means a wife, or (2) simply to contracts of married women. period of time of some appreciable duration, and

1. Some statutes expressly prohibit contracts (3) or generally of some considerable duration. It may expressly authorize them. (5)

some contracts (4) between husband and wife; others

A statute prohibiting mean a day, a year, or a century. We often speak contracts between husband and wife destroys their of the present century and of future centuries. Pre-prior capacity only so far as such capacity is expressly

referred to or as is necessary to recure the efficienoy of sent time' usually means some period of time within the statute. (6) A statute authorizing contracts bewhich certain transactions are to take place; and tween husband and wife generally includes all con“future time' usually means a period of time to specifies certain contracts the capacity it gives is con

tracts each could make with a third party, but if it come after such present time, and after the period fined to these. (7) If annexed to a general statute emof time when such transactions have actually taken powering a married woman to contract there is a place."

clause excepting certain specified contracts with her

husband, such statute gives her power to make all con: CARRIAGE. - A police magistrate in London has tracts with her husband, but those excepted, which it recently held that a "perambulator,” or baby car. enables her to make with third parties.(8) Thus, under riage, is a "carriage” within the statute prohibit-the Alabama statute, which provides that a married

woman may contract but may not make a coutract of ing “any cart or carriage, sleigh, truck or barrow sale with her husband, she may make any other conupon any footway,” i. e., sidewalk. The London tract with him and receive gifts from him,(9) and Law Journal says: “This decision will carry married woman may acquire property except from her

under the Maryland statute, which provides that a dismay into the nursery.

We agree that husband in prejudice of his creditors' rights, she may two perambulators are an obstruction, and that acquire property directly from her husband when his nursemaids combining in the attack will often

creditors are not affected; (10) but a statute like that

of Iowa (11) authorizing transfers between husband trample the toes of passers-by under their chariot and wife does not authorize personal contracts. (12) wheels. But if one perambulator is a carriage in

(1) Scarborough v. Watkins, 9 B. Monr. 540, 545 ; Johnson v. the obstructive sense, so is a toy wheelbarrow or a Stillings, 36 Me. 427, 428; White v. Wager, 25 N. Y. 328, 332, child's horse.”

333; 32 Barb. 250.

(2) Wallingsford v. Allen, 10 Pet. 583, 593, 594; Dale v. BUSINESS.- A covenant not to carry on any Lincoln, 62 Ill. 22, 26 ; Stockett v. Halliday, 9 Md. 480, 498 ; “ business” on demised premises is broken by using

Loomis v. Brush, 36 Mich. 40. 46; Winnas v. Peebles, 32 N. Y.

423, 426. the premises as a home for working girls, without (3) Ala. Code, 1876, $ 2709; Mass. P. S. 1882, p. 819, $2; Bascompensation. Rolls v. Miller, Ch. Div., March 8, sett

, 112 Mass. 99, 100.

(4) La. Civ. Code, 1875, SS 2326, 2327 ; Minn. St., 1878, p. 769, 1884. Pierson, J., said that a " business" might be $4. carried on without money being received; and he (5) Cal. Civ. Code, 1881, H 158, 159; Pa. Pur. Dig. 1872, p. stated that in his opinion that was a business which

1007, $ 21. i

(6) See Ingoldsby v. Juan, 12 Cal. 564, 575, 576: Maclay v. was carried on by any person in addition to or as Love, 25 id. 367, 381, 382. diverse from his ordinary domestic life.

(7) Jenne v. Marble, 37 Mich. 319, 323; See Stevroufeltz v.

Frickey, 34 Md. 569, 571; Robertson v. Bremer, 24 Miss. 242, RELIGIOUS WORSHIP.— In State v. Morris, 59 N. 244. H. 536, it was said that this term has no technical 45 Md. 414; Gregory v. Dodds, 60 Miss. 549, 552; Whitney v.

(8) Goree v. Walthall, 44 Ala. 161, 164, 165; Trader v. Lowe, meaning; and so it was left to a jury to say whether Wheeler, 116 Mass. 70. a temperance camp-meeting, opened with prayer and sel, 66 id. 151; Harden v. Darwin, id. 56.

(9) Goree v. Walthall, 44 Ala. 161, 164, 165; Goodlett v. Hanreading of Scriptures, and accompanied by singing (10) Trader v. Lowe, 45 Md. 1, 14. of religious hymns, was an assembly for “ relig- Robertson, 26 Iowa, 350, 356.

(11) Iowa R.'C., 1880, $ 2206; but $ 1985, may authorize them; ious worship."

(12) Jeune v. Marble, 37 Mich, 310, 321.)

There are statutes on this subject like that of Kan- equitable separate estate, (30) especially as statutes sas, (13) the effeot of which must be purely specula- creating separate estate are often simply declaratory tive.

of the unwritten law administered by courts of 2. Married Women Acts not referring to contracts equity. (31) between husband and wife, but giving a married

DAVID STEWART. woman the capacity to contract with the assent or BALTIMORE, MD. joinder of her husband, (14) do not enable her to contract with her husband, (15) except perhaps when as

PRESUMPTION OF NEGLIGENCE. sent alone is required to transfer property to him in equity. (16) Thus, where a married woman can con

N many cases circumstances deed to her husband is void ; (17) and where she can

the party injured to offer any proof on the question of jointly with her husband make written contracts (18) a promissory note by husband and wife to husband is void, negligence other than that afforded by the accident

itself. In all such cases it becomes necessary to deter(19) but where a married woman may assign her prop. mine whether proof of the casualty and of the circumerty with the assent of her husband such an assignment stauces under which it occurred, is sufficient to create may be valid in equity.(20) Whether a general statute

a presumption of negligence and thus throw the burenabling a married woman to contract as if unmarried, (21) enables her to contract with her husband is fault. The leading case on the subject is Kearney v.

den upon the defendant to establish his freedom from disputed, (22) on the one hand it is said that the incapacity of husband and wife to contract together is London, Brighton & South Coast R. Co. The decision

in the Court of Queen's Bench is reported in L. R., 5 an incapacity of the busband as well as of the wife Q. B. 411; and the decision of the Court of Execheand is not renewed when the incapacity of the wife alone is destroyed, (23) that contracts between hus- Queen's Bench is reported in L. R., 6 Q. B. 759. The

quer Chamber on appeal affirming the judgment of the band and wife are void not only because one of the parties is under disability, but because both parties public highway. The plaintiff while passing uuder it

defendants were the owners of a certaiu bridge over a are one, (24) and therefore are not made valid by a statute which simply removed that disability, (25) that had been built three years.

was struck by a falling brick and injured. The bridge

A train had passed the rule is well settled that Married Women Acts do not affect the unity of husband and wife, (26) and by structed that they might infer negligence from the

over it just before the accident. The jury were inthis rule a married woman's enabling act changes the

bare circumstance that the brick fell from its place, status of wives only toward third persons unless it

but that they were under no legal obligation to find a refers expressly to her husband. (27) On the other

want of care from that naked fact. The verdict was it is assumed that the Legislatures intended to include for the plaintiff. A rule was obtained to enter a noncontracts with busband. (28) The former is the cor

suit on the ground that there was no evidence of neglirect, but the latter the best established view. It is consistent with both views that courts of equity, which to the jury. Upon the argumeut the rule was dis

gence which would warrant the submission of the case have never recognized the disability from the unity of charged. Cockburn, C. J., in delivering the opinion husband and wife, (29) should put contracts between of the court said: “It is clear that it was incumbent husband and wife relating to her statutory separate

on the defendants to use reasonable care and diligence, estate on the same footing as contracts relating to her and I think the brick being loose affords prima facie (13) Kans., C. L., 1881, p. 539, 83136.

a presumption that they had not used reasonable care (14) Such as Md. R. C., 1878, pp. 482, 483, 88 20, 30.

and diligence. It is true that it is possible that from (15) Breit v. Yeaton, 101 III. 242, 262; Hogan, 89 id. 427, 433, changes in the temperature, a brick might get into the 434; Brooks v. Keaens, 86 id. 547, 549; Live v. Blizzard, 70 Ind. coudition in which this brickwork appears to bare 25; Kinneman v. Pyle, 44 id. 275; Scarborough v. Watkins, 9 been, from causes operating so speedily as to preB. Monr. 540, 515; Gebb v. Rose, 40 Md. 387, 392.

vent the possibility of any diligence and care applied (16) See Whitridge v. Barry, 42 Md. 140, 151, 152.

to such a purpose intervening in due time so as to (17) Gebb v. Rose, 40 Md. 387, 392.

prevent any accident. But inasmuch as our own ex(18) Such as Md. R. C., 1878, p. 482, & 20.

perience of these things is that bricks do not full out when (19) Inference from cases, supra, n. 14.

brick work is kept in a proper state of repair, I think (20) Whitridge v. Barry, 42 Md. 140, 151, 152.

where an accident of this sort happens, the presump(21) Such as Ill. R. S., 1880, p. 592, $ 6; Mich. R. S., 1882, tion is that it is not the frost of a single night or of 8 6295.

mauy nights that would cause such a change in the (22) That she can, see Bank v. Banks, 101 U.S. 240, 244, 245 ; state of brickwork as that a brick would fall out in Kinkead, 3 Biss. 405, 410; Wells v. Gaywood, 3 Col. 487, 494.

this way; and it must be presumed that there was not Hamilton, 89 III, 349, 351; Robertson, 25 Iowa, 350, 355 ; Allen

that inspection and that care on the part of the defendv. Hooper, 50 Me. 371, 374, 375; Jenne v. Marble, 37 Mich. 319, 321, 323; Ransom, 30 id. 328, 330; Rankin v. West, 25 id. 195,

ants which it was their duty to apply.” Lush, J., in 200; Burdeno v. Amperse, 14 id. 91, 97; Alben y. Lord, 39 N.

concurring, reaches this conclusion by the same chain H. 196, 203, 204; Zimmerman v. Erhard, 58 How. Pr. 11, 13; of reasoning. He says: It is not a matter of common Woodworth v. Sweet, 51 N. Y. 81. That she cannot, see occurrence for bricks to come loose and to fall from the Hoker v. Boggs, 63 III. 161, 163; Knowles v. Hull, 99 Mass. 562, fabric to which they belong. There must be some cause 564, 565 ; Lord v. Parker, 3 Allen, 127, 129; Aultman v. Ober- for it; and no cause is assigned and there is no erimeyer, 6 Neb. 200, 264; Savage v. O'Neill, 42 Barb. 374, 379 ;dence whatever which would lead to the inference White v. Wager, 25 N. Y. 328, 330-334.

that the brick was suddenly jerked from its place. * (23) White v. Wager, 25 N. Y. 328, 333: denied, Burdeno v.

I think therefore in the absence of any explanation Amperse, 14 Mich. 91, 87.

whatever of how it was the brick got so loose as to fall (24) Supra, n. 1.

down on the passer by, the jury might reasonably (25) White v. Wager, 25 N. Y. 328, 333.

have inferred that the company was negligent, and (26) See full discussion of this rule, 12 Md. Law Record, p. that if they had made a proper inspection they might 3, March 1, 1884.

(30) See Whitridge v. Barry, 42 Md. 140, 152; Hall v. Eccle(27) See cases cited, supra, R. 22.

ston, 37 Md. 510, 820; infra, n. 31. (28) Wells v. Gaywood, 3 Co. 487, 494 ; cases, supra, n. 22. (31) Jenne v. Marble, 37 Mich, 319, 323; Alben v. Lord, 39 (29) Supra, n. 2.

N, H. 196, 203, 204.

have found out the condition of the bridge.” In the reotly in point, as they are cases in which the question Court of Exchequer Chamber the judgment below was arose between a commou carrier and a passenger being unanimously affirmed, and the reasoning on which transported by it. There are in that class of cases two that judgment was based was expressly sanctioned. reasons for holding that the mere fact of the accident : Kelly, C. J., who wrote the opinion, said: “The raises a presumption of negligeuce, which do not oblearned chief justice in his judgment in the court tain in ordinary cases. In the first place a common below said res ipsa loquitur, and I cannot do better carrier owes to the passenger an extraordinary duty than to refer to that judgment." The couclusion aud is liable for the slightest degree of negligence. It reached in this case is unquestionably sound as it rests is therefore but reasonable that slight evidence should upon a principle that commends itself to the mind of afford prima facie proof of carelessness. In the second every one as being not only reasonable but also as place it would be impossible in a majority of cases for more strictly logical than any other which might be a party injured under such circumstances to give any invoked in this class of cases. When a casualty oc- other evidence of negligence. The following are curs which reason or human experience teaches us cau the cases in which the rule has been applied as against or does very seldom if ever happen unless through the a cominon carrier and in favor of the passenger. negligence of some person, it is certainly a fair infer- Denver, etc., R. Co. v. Woodward, 4 Col. 1; Stokes v. ence that the party who is responsible for carelessness Saltonstall, 13 Pet. 181; Railroad Co. v. Pollard, 22 in such a case has been guilty of some fault which has Wall. 341; Balt. & Ohio R. Co. v. Wightman, 29 Gratt. caused or contributed to the accident. Not only rea- 431; Balt. & Ohio R. Co. v. Noell's administrator, 32 son and principle, but convenience and justice sauc- id. 394; Robinson v. N. Y, C. &. H. R. R. Co., 20 tion this doctrine, for in many cases it would be ex- Blatch. 338; Rose v. Stephens & Conduit Trans. Co., tremely difficult, if not impossible for the party injured id. 411; Phila. & Read. R. Co v. Anderson, 94 Penn. to adduce any other evidence on the question of negli- St. 351; Sullivan v. Railroad Co., 30 id. 234; George v. gence than that furnished by the accident itself and St. Louis, I. M. & S. R. Co., 34 Ark. 613; P. C. & St. the circumstances surrounding it; while on the other Louis R. Co. v. Thompson, 56 III. 138; Wilson v. Northhand it is nearly always possible and often very simple ern Pacific R. Co., 26 Minn. 278; McLean v. Burbank, and easy for the defendant to rebut the presumption 11 id. 189; McMahon v. Davidson, 12 id. 357; Fay v. of negligence provided there exist the facts by which Davidson, 13 id. 523; Edgerton v. N. Y. C. & H. R. R. that presumption may be met and overthrown. This Co., 39 N. Y. 227; Curtis v. Rochester & Syracuse R. doctrine has been uniformly recognized and adopted Co., 18 id. 534; Pittsburgh & St. Louis R. Co. r. both in England and in the courts of the States and of Williams, 74 Ind. 462; Balt., etc., R. Co. v. Worthingthe United States.

ton, 21 Md. 275; Youngs v. Kinney, 28 Ga. 111; Zemp In Byrne v. Beadle, 2 Hurl. and Colt. 722, it was held v. W. & M. R. Co., 9 Rich. 84; New Orleans, etc., R. that the mere fact that the plaintiff was injured by a Co. v. Allbritton, 38 Miss. 242; Iron R. Co.v. Mouery, 36 barrel falling from the window of a shop into the high- Ohio St. 418; Eagle Packet Co. v. Defries, 94 III. 598. way, created a presumption of negligence. Pollock, In this last case it appeared that the plaintiff was inC. B., used the Sollowing language: “It is the duty of jured while passing ashore from defendant's boat, persons who keep (barrels in a warehouse to take care which had landed at a wharf, by the falling of the that they do not roll out, and I thiuk that) such a stage plank over which passengers walked in going case would beyond all doubt afford prima facie evi- ashore. It was held that the fall of the plank under deuce of negligence. A barrel could nol roll out of a these circumstances created a presumption that dewarehouse without some negligence.” In Scott v. Lon- fendant had been guilty of carelessness in the perdon Dock Co., 3 Hurl. & Colt. 596, the plaintiff was in- formance of its duty. jured by some bags of sugar which fell upon him as he Thomas v. Western Union Tel. Co., 100 Mass. 156, was passing defendant's warehouse. Held, that these was an actiou for injuries to plaintiff's horses. It apfacts established a prima facie case. The court based peared that the accident was caused by one of the its decision upon the same principle of human experi- hind wheels of plaintiff's wagon becoming entangled ence. “But when the thing is shown to be under the with one of defendant's wires “which the plaintiff management of the defendant or his servants, and the found swinging across the highway at such a height as accident is such as in the ordinary course of things to endanger ordinary travel.” It was held that the does not happen if those who have the management fact that the wire was in such a position was prima use proper care, it affords reasonable evidence, in the fucie evidence of negligence. absence of explanation by the defendant tbat the acci- In Jullen v. St. John, 57 N. Y. 567, the court dedent arose from a want of care.” The case of Gee v. Me- cided that the mere fact that plaintiff was injured by tropolitan R. Co., L. R., 8 Q. B. 161, is very similar to the fall of defendant's building created a presumption that of Kearney v. London, Brighton & South Coast R. of negligence. The decision was founded upon the Co.(supra). The evidence showed that plantiff who was same elementary principle which forms the substance a passenger upon one of defendaut's trains,got up from of all the adjudications on the subject, namely: That his seat and put his hand on the bar which passed the occurence of an accident, which will not ordinarily across the window of the carriage, with the intention happen without carelessuess, affords, in and by itself, of looking out to see the lights of the next station. apart from any other evidence, a presumption that The pressure of his hand caused the door to fly open negligence was the cause of the casualty in that parand he fell out and was injured. It was held by the ticular instance. This reasoning is expressed in these Queens Bench, that the circumstances of the accident words: “ Buildings properly constructed do not fall created a presumption of uegligence, and this decision without adequate cause. If there be no tempest prewas unanimously affirmed in the Exchequer.

vailing and no external violence of any kind, the fair Iv Christie v. Griggs, 2 Camp. 80, the plaintiff was presumption is that the fall occurred through adeinjured by the breaking down of defendant's coach. quate causes such as the ruinous condition of the Having proved that the axle-tree broke, the plaintiff building which could scarcely have escaped the obserrested his case. It was insisted that no negligence had vation of the owner. The mind is thus led to a prebeen shown, but Sir James Mansfield, C. J., ruled that sumption of negligence on his part which of course a presumption of carelessness arose from the mere fact

may be rebutted." of the accident.

In Lyons v. Rosenthall, 11 Hun, 46, the court held In this country the authorities on the subject are that the falling of a box which was being hoisted, afquite numerous, many of them however are not di

forded prima facie evidence of carelessness.


? In Smith v. British Packet Co., 46 N. Y. Supr. Ct. 86, to one Palmer, that said Palmer had control of the affirmed in 86 N.Y. 408, it was held that the bare fact column where the article appeared, without supervisthat plaintiff was injured by the falling of berths on ion by the proprietors (who knew nothing of the defendant's vessel was prima facie evidence of want article until after its publication). The purpose of ordinary care. The court say: “The use of ordi- of the offer was to show malice on the part of Palmer nary skill and of materials of ordinary strength would and to enhance the damages. enable the builders of the structure that was meant to The evidence was not admitted, and the court uphold the berths, to make it secure against the strains charged “that if the defendants had no personal and shocks of a sea of not extraordinary violence. knowledge of the article before it was published, and These means of this security being at the command of in good faith did what was reasonable to make the owners of the steamship, the law presumes that amends and reparation after the facts became known there was negligence when the berths fell.”

to them, this is not a case for punitive damages." The plaintiff in Gerlach v. Edelmeyer, 47 N. Y. Supr. The verdict and judgment was $270 in favor of the Ct. 292, was injured by the fall of an elevator under de plaintiff, and plaintiff took a writ of error. fendants' control. The jury were instructed that they John Dalzell and S. A. McClung, for plaintiff in might find negligence from the simple fact that the accident occurred under such circumstances. On appeal this instruction was held to be correct, the court dis

A. M. Brown, contra. posing of the question in these words: “The learned MERCUR, C. J. The defendants are the proprietors judgo charged that prima facie the accident happened of a daily newspaper, call the Commercial Gazette, through Dittuer's negligence, and that the burden of published in the city of Pittsburgh. This suit is to proof was on the defendants to show that Dittner was recover damages for the composing and publishing as not negligent. This I think is a'correct statement of the editorial in the columns of that paper, an article relaw in this case. The elevator was under the manage- flecting on the plaintiff, which the jury have found to ment of defendants' servants, (and in the ordinary | be libellous. course of events the accident would not have happened The first and second specifications of error are to the if their servant had been careful The happening of rejection of evidence, of substantially the same charthe accident therefore affords evidence, in the absence acter, offered by the plaintiff. Whether the evidence of explanation, that the accident happened from want was properly rejected depends on the liability of the of care."

defendants for the conduct of Dr. Palmer, who was The rule established by these authorities is very one of the editors of the paper. A master is liable for simple in itself. The real difficulty consists in deter- the wrongful act of his servant when the injury is mining whether a given state of facts warrant its ap- committed by authority of the master, either explication. The question is of course always a question pressly conferred or fairly implied from the nature of for the court.

the employment and the duties thereby imposed. 1

GUY C. H. CORLISS. Black. Com. 429; Wood Mast. and Serv., $ 279. He is ST. PAUL, MINN.

liable for the act of his servant, within the scope of his

employment, and incident to the performance of the NEWSPAPER LIBEL WRITTEN BY EM

duties intrusted to him, although the specific act of PLOYEE.

injury be in opposition to the express and positive command of the master. Id., $ 305; Mechanics' Bank

v. Bank of Columbia, 5 Wheat. 3:20. This may be said PENNSYLVANIA SUPREME COURT, JANUARY 7, 1884.

to be the settled rule of law applicable to the liability

of masters generally for the acts of their agents. BRUCE V. REED.

The liability of the proprietors of a newspaper for The proprietor of a newspaper is liable for a libel published the act of an agent, to whose management they have

therein by an employee having full charge of the depart-intrusted the paper, is more broad. The proprietor is ment where it appears, though such publication was presumed to have published the libel which appears without the proprietor's sanction or knowledge, and his

therein, and in a criminal prosecution therefor, it is no liability is not limited to compensatory damages.

defense for him to show that it was published without CTION for libel against defendants who were his knowledge and in his absence. Rex v. Walter, 3

proprietors of a newspaper known as the Pitts- Esp. 21; King v. Gutch, 1 Moody & Malk. 433; Roscoe burgh Commercial Guzette. The facts were these: Crim. Ev. (6 Am. ed.) 621; Commonwealth v. Morgan,

A reporter of the paper called upon plaintiff Bruce, 107 Mass. 199. a lawyer, and asked him to express his opinion as to The material for this libel appears to have been the right of a landlord to levy upon goods of a sub-drawn from the fact that a reporter of the paper tenant. Plaintiff stated that a general rule could not sought to “interview" the plaintiff, and asked his be giren; but that a person interested should apply to opinion, for publication, on a question of law, which his own attorney for advice as to tho matter. Shortly the plaintiff declined to give, and stated reasons afterward this article appeared in the newspaper men- therefor. The offers, inter alia, were to prove this tioned.

conversation, and that it was reported to Dr. Palmer “David D. Bruce informs reporters that he consid- who was in the employ of the defendants; that he had ers it unprofessional for him to open his mouth, ex- the charge and management of the column, in which cept he sees or smells a fee somewhere. The query the article was published, not subject to the supernaturally arises in the mind of the reader, who pays vision of the defendants; that he subsequently wrote, him for his lengthy disquisitions in council? He must and the defendants published the libel in question; realize a splendid income from that source if he car- and that Palmer was pecuniarily irresponsible, and is ries out his principles there as sedulously as he assumes now dead. The defendants objected to the evidence to with reporters. Fortunately for the public, there claiming it to be incompetent as the plea was "not are other lawyers whose views of professional etiquette guilty" and the only question was that of publicado not coincide with Mr. Bruce's."

tion. They made no objection to proving the publicaThis article constituted the libel complained of. tion of the libellous article, but claimed their liability Plaintiff offered evidence of the facts abore set forth, was restricted to what they actually published. The and also of the cor versation between the reporter and court rejected both offers. himself and a subsequent report of it by the reporter If the defendants gave to Palmer such charge and


« 이전계속 »