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wagon, and thus constituting a team, do not come under the designation of live stock. The word stock, as employed in agriculture, means, accord

words discloses a difference in signification, and that difference is perhaps more recognizable when these terms are applied to the [law or to medical science. 'To show' is to make apparent or clearing to Webster, domestic animals or beasts collected, by evidence, to prove, whilst an 'indication' may merely a symptom, that which points to or gives direction to the mind."

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ALLEY-WAY.— In Hacke's' Appeal, Pennsylvania Supreme Court, January, 1884, the court said: "An alley-way has a clear and distinct meaning. It is a way of less than the usual width of a street. It is generally understood to be an open and unobstructed way. An order to open and provide an alley-way, is not fulfilled by providing a passage-way through which a person may pass by opening and closing doors and gates. Such means of passage are not within the reasonable and natural understanding of an alley-way.” So it was held that an order to open and provide an alley-way is not fulfilled by providing a passage-way over the land where the alley should be, through a store-room, along which a person may pass by opening and closing doors and gates.

PASSENGER SHIP.-A steam-tug, carrying a number of guests gratuitously on a pleasure trip on a single occasion is a "6 passenger ship," and liable to the penalty under the Merchant Shipping Act for not having a certificate.

Board of Works v. Kidstone, Ir. Q. B. Div., January, 1884. The court said: "Neither does the fact of the ordinary employment being that of a tug-boat affect the question now for our decision. It is the user and employment of the vessel on the particular occasion which impresses her character on her at the time of that user and employment." O'Brien, J., dissenting, observed: "What is the ordinary sense of the words? A person going by a railway or a stage coach, or a steamer, anywhere, and paying his fare, would be called a passenger; but a person going out in a yacht or in a private coach would not usually, at all events, be so spoken of, just as a person who stopped at his friend's house would not be called a lodger, though he was lodged. * * *The whole foundation of the argument for the Board of Trade, as it appears to me, rests upon the error that lurks in the meaning given to the use of the word 'carry' in the 303d section. To carry is a term so common in the law as to have a defined meaning. It means carriage for profit. A person that carries is a carrier, and in the idea of a carrier hire is always included. Persons who are on board a ship by permission are not carried in a legal sense-they are not passengers, they are licensees. They have no right to remain, they have no regular destination, they may be put out anywhere. The law gives them no right of action for negligence. They are on board without any right or contract whatever, their legal presence perishes at any moment at the will of the owner."

LIVE STOCK.-A team of horses may be "live stock." In Inman v. Chicago, etc., R. Co., 60 Iowa, 459, the court said: "The appellant insists that the horses in question, harnessed and hitched to a

used or raised on a farm; as a stock of cattle or of sheep-called also live stock. Now, whilst it may be admitted that the term stock does not embrace the idea of a team, it cannot, nevertheless, be denied that the term team embraces the idea of live stock. The word team means two or more horses, oxen or other beasts, harnessed together to the same vehicle for driving. A team therefore is composed of live stock, and cannot exist without it. It would be exceedingly technical to hold that two horses, when harnessed and hitched together to a wagon, cease to fall under the designation of live stock.”

question in this case received the injury

RUNNING AT LARGE.- A team of horses running away are "running at large." In Inman v. Chicago, etc., R. Co., 60 Iowa, 459, the court said: “The appellant further insists that the team was not running at large, as contemplated in the statute. In Welsh v. C. B. & Q. R'y Co., 53 Iowa, 632, it was held that the jury was warranted in finding that a horse was running at large which had on a bridle with the rein over his head, and a halter rope which was untied and dragging. In that case an instruction, as follows, was approved: The words, running at large,' as used in the statute, import that the stock are not under the control of the owners; that they are not confined by inclosures to a certain field or place, nor under the immediate care of a shepherd or herdsman; that they are left to roam wherever they may go. But where an animal escapes from the control of the owner, and can not be caught by the owner, then such animal would be running at large within the meaning of the statute.' We are content with the doctrine announced in the foregoing case. Under it there can be no doubt that the horse in was running at large when it complained of." ABIDE.-To "abide" the order of the court means to obey. In Jackson v. State, 30 Kans. 88, the court said: "Now the word 'abide,' as used in the statute, means obedience, compliance. In Hodge v. Hodgson, 8 Cush. 297, Shaw, chief justice, in an action on a similar bond, uses these words: 'We have already said that the condition of the defendant's original obligation was to abide the final order of the court. To abide,' we think, as used in this statute, is to 'perform,' to 'execute,' to 'conform to,' such order. Taylor v. Hughes, 3 Greenl. 433."" APPENDAGE.- - A well may be an appendage to a school-house. In Hemme v. School District, 30 Kans. 377, the court said: "Section 25, article 4, chapter 122 of the Laws of 1876 (Comp. Laws of 1879, p. 830), provides that 'the district board shall provide the necessary appendages for the school-house during the time a school is taught therein.' Unless this language can be construed so broadly as to authorize the school board to construct a well, or a fence, or a privy upon the ground supon which the schoolhouse is situated, it would seem that neither the

HUSBAND AND

WIFE TO CONTRACT TOGETHER.

THE word "contract" in this article includes (1) executory contracts or contracts proper; (2) executed contracts or transfers; (3) and transfers without consideration, or gifts.

Under the unwritten common law contracts between

board nor the school district itself has any authority STATUTORY CAPACITY OF to construct any such improvements. We would therefore think that the Legislature must have used the word 'appendage' in said section 25, and also in subdivision 5, section 11, article 3, of said chapter, in a very broad and comprehensive sense, and intended to include these improvements, as well as many other things which might come within the general defini-husband and wife are absolutely void at law, because tion of 'appendages.' Webster defines the word 'appendage' as 'something added to a principal or greater thing, though not necessary to it, as a portico to a house.' Worcester defines the word as 'something added, attached, or annexed; a concomitant.' As before stated, we think the word ought to be construed broadly, so as to include a well constructed on the same premises on which the school-house is situated."

PRESENT TIME. In State v. Rose, 30 Kans. 501, the court said: "Present time' usually means a period of time of some appreciable duration, and generally of some considerable duration. It may mean a day, a year, or a century. We often speak of the present century and of future centuries. Present time' usually means some period of time within which certain transactions are to take place; and 'future time' usually means a period of time to come after such present time, and after the period of time when such transactions have actually taken place."

CARRIAGE. A police magistrate in London has recently held that a "perambulator," or baby carriage, is a "carriage" within the statute prohibiting "any cart or carriage, sleigh, truck or barrow upon any footway," i. e., sidewalk. The London Law Journal says: "This decision will carry dismay into the nursery. * * * We agree that two perambulators are an obstruction, and that nursemaids combining in the attack will often trample the toes of passers-by under their chariot wheels. But if one perambulator is a carriage in the obstructive sense, so is a toy wheelbarrow or a child's horse."

BUSINESS. A covenant not to carry on any "business on demised premises is broken by using the premises as a home for working girls, without compensation. Rolls v. Miller, Ch. Div., March 8, 1884. Pierson, J., said that a "business" might be carried on without money being received; and he stated that in his opinion that was a business which was carried on by any person in addition to or as diverse from his ordinary domestic life.

a wife has no capacity to contract at all, and because husband and wife being one, any contract between them is void for want of parties. (1) But in equity where the duality of husband and wife has always been recognized and where a wife has always had a limited capacity to contract as to her separate property, contracts between husband and wife if equitable are valid. (2) Such contracts are not however discussed in this article, but only the validity of contracts as far as respects capacity between husband and wife under statutes.

The statute the effect of which is in question may refer (1) expressly to contracts between husband and wife, or (2) simply to contracts of married women.

1. Some statutes expressly prohibit contracts (3) or some contracts (4) between husband and wife; others expressly authorize them. (5) A statute prohibiting contracts between husband and wife destroys their prior capacity only so far as such capacity is expressly referred to or as is necessary to secure the efficiency of the statute. (6) A statute authorizing contracts between husband and wife generally includes all contracts each could make with a third party, but if it specifies certain contracts the capacity it gives is confined to these. (7) If annexed to a general statute empowering a married woman to contract there is a clause excepting certain specified contracts with her husband, such statute gives her power to make all contracts with her husband, but those excepted, which it enables her to make with third parties. (8) Thus, under the Alabama statute, which provides that a married woman may contract but may not make a contract of sale with her husband, she may make any other contract with him and receive gifts from him,(9) and married woman may acquire property except from her under the Maryland statute, which provides that a husband in prejudice of his creditors' rights, she may acquire property directly from her husband when his creditors are not affected; (10) but a statute like that of Iowa (11) authorizing transfers between husband and wife does not authorize personal contracts. (12)

(1) Scarborough v. Watkins, 9 B. Monr. 540, 545; Johnson v. Stillings, 36 Me. 427, 428; White v. Wager, 25 N. Y. 328, 332, 333; 32 Barb. 250.

(2) Wallingsford v. Allen, 10 Pet. 583, 593, 594; Dale v. Lincoln, 62 Ill. 22, 26; Stockett v. Halliday, 9 Md. 480, 498; Loomis v. Brush, 36 Mich. 40. 46; Winnas v. Peebles, 32 N. Y. 423, 426.

(3) Ala. Code, 1876, § 2709; Mass. P. S. 1882, p. 819, § 2; Bas

sett, 112 Mass. 99, 100.

§4.

(4) La. Civ. Code, 1875, §§ 2326, 2327; Minn. St., 1878, p. 769,

(5) Cal. Civ. Code, 1881, 158, 159; Pa. Pur. Dig. 1872, p. 1007, § 21. ¡

(6) See Ingoldsby v. Juan, 12 Cal. 564, 575,576: Maclay v. Love, 25 id. 367, 381, 382.

(7) Jenne v. Marble, 37 Mich. 319, 323; See Stevroufeltz v. Frickey, 34 Md. 569, 571; Robertson v. Bremer, 24 Miss. 242, 244.

(8) Goree v. Walthall, 44 Ala. 161, 164, 165: Trader v. Lowe, 45 Md. 414; Gregory v. Dodds, 60 Miss. 549, 552; Whitney v. Wheeler, 116 Mass. 70.

RELIGIOUS WORSHIP.- In State v. Morris, 59 N. H. 536, it was said that this term has no technical meaning; and so it was left to a jury to say whether a temperance camp-meeting, opened with prayer and reading of Scriptures, and accompanied by singing of religious hymns, was an assembly for "relig- Robertson, 25 Iowa, 350, 355. ious worship."

(9) Goree v. Walthall, 44 Ala. 161, 164, 165; Goodlett v. Hansel, 66 id. 151; Harden v. Darwin, id. 55. (10) Trader v. Lowe, 45 Md. 1, 14.

(11) Iowa R.'C., 1880, § 2206; but § 1935, may authorize them;

(12) Jeune v. Marble, 37 Mich. 319, 321.)

There are statutes on this subject like that of Kansas, (13) the effect of which must be purely speculative.

2. Married Women Acts not referring to contracts between husband and wife, but giving a married woman the capacity to contract with the assent or joinder of her husband, (14) do not enable her to contract with her husband, (15) except perhaps when assent alone is required to transfer property to him in equity. (16) Thus, where a married woman can convey only by joint deed with her husband such a joint deed to her husband is void; (17) and where she can jointly with her husband make written contracts (18) a promissory note by husband and wife to husband is void, (19) but where a married woman may assign her property with the assent of her husband such an assignment may be valid in equity.(20) Whether a general statute enabling a married woman to contract as if unmarried, (21) enables her to contract with her husband is disputed, (22) on the one hand it is said that the incapacity of husband and wife to contract together is an incapacity of the husband as well as of the wife and is not renewed when the incapacity of the wife alone is destroyed, (23) that contracts between husband and wife are void not only because one of the

parties is under disability, but because both parties are one, (24) and therefore are not made valid by a statute which simply removed that disability, (25) that the rule is well settled that Married Women Acts do not affect the unity of husband and wife, (26) and by this rule a married woman's enabling act changes the status of wives only toward third persons unless it refers expressly to her husband. (27) On the other it is assumed that the Legislatures intended to include contracts with husband. (28) The former is the correct, but the latter' the best established view. It is consistent with both views that courts of equity, which have never recognized the disability from the unity of husband and wife, (29) should put contracts between husband and wife relating to her statutory separate estate on the same footing as contracts relating to her

(13) Kans., C. L., 1881, p. 539, § 3136.

(14) Such as Md. R. C., 1878, pp. 482, 483, 88 20, 30.

(15) Breit v. Yeaton, 101 Ill. 242, 262; Hogan, 89 id. 427, 433, 434; Brooks v. Keaens, 86 id. 547, 549; Live v. Blizzard, 70 Ind. 25; Kinneman v. Pyle, 44 id. 275; Scarborough v. Watkins, 9 B. Monr. 540, 545; Gebb v. Rose, 40 Md. 387, 392. (16) See Whitridge v. Barry, 42 Md. 140, 151, 152. (17) Gebb v. Rose, 40 Md. 387, 392.

(18) Such as Md. R. C., 1878, p. 482, i 20.

(19) Inference from cases, supra, n. 14.

(20) Whitridge v. Barry, 42 Md. 140, 151, 152.

(21) Such as Ill. R. S., 1880, p. 592, § 6; Mich. R. S., 1882, § 6295.

(22) That she can, see Bank v. Banks, 101 U. S. 240, 244, 245; Kinkead, 3 Biss. 405, 410; Wells v. Gaywood, 3 Col. 487, 494. Hamilton, 89 Ill. 349, 351; Robertson, 25 Iowa, 350, 355; Allen v. 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, 200; Burdeno v. Amperse, 14 id. 91, 97; Alben v. Lord, 39 N. H. 196, 203, 204; Zimmerman v. Erhard, 58 How. Pr. 11, 13; Woodworth v. Sweet, 51 N. Y. 81. That she cannot, see Hoker v. Boggs, 63 Ill. 161, 163; Knowles v. Hull, 99 Mass. 562, 564, 565; Lord v. Parker, 3 Allen, 127, 129; Aultman v. Obermeyer, 6 Neb. 260, 264; Savage v. O'Neill, 42 Barb. 374, 379; White v. Wager, 25 N. Y. 328, 330-334.

(23) White v. Wager, 25 N. Y. 328, 333: denied, Burdeno v. Amperse, 14 Mich. 91, 87.

(24) Supra, n. 1.

(25) White v. Wager, 25 N. Y. 328, 333.

(26) See full discussion of this rule, 12 Md. Law Record, p. 3, March 1, 1884.

(27) See cases cited, supra, n. 22.

(28) Wells v. Gaywood, 3 Col. 487, 494; cases, supra, n. 22. (29) Supra, n. 2.

equitable separate estate, (30) especially as statutes creating separate estate are often simply declaratory of the unwritten law administered by courts of equity. (31) DAVID STEWART.

BALTIMORE, MD.

PRESUMPTION OF NEGLIGENCE.

many cases circumstances attending an injury are of such a nature as to render it impossible for the party injured to offer any proof on the question of negligence other than that afforded by the accident

itself. In all such cases it becomes necessary to determine whether proof of the casualty and of the circumstances under which it occurred, is sufficient to create a presumption of negligence and thus throw the burden upon the defendant to establish his freedom from fault. The leading case on the subject is Kearney v. London, Brighton & South Coast R. Co. The decision in the Court of Queen's Bench is reported in L. R., 5 Q. B. 411; and the decision of the Court of Exechequer Chamber on appeal affirming the judgment of the Queen's Bench is reported in L. R., 6 Q. B. 759. The defendants were the owners of a certain bridge over a

public highway. The plaintiff while passing under it was struck by a falling brick and injured. The bridge had been built three years. A train had passed over it just before the accident. The jury were instructed that they might infer negligence from the bare circumstance that the brick fell from its place, but that they were under no legal obligation to find a want of care from that naked fact. The verdict was for the plaintiff. A rule was obtained to enter a nonsuit on the ground that there was no evidence of negligence which would warrant the submission of the case charged. Cockburn, C. J., in delivering the opinion to the jury. Upon the argument the rule was dis

of the court said: "It is clear that it was incumbent on the defendants to use reasonable care and diligence, and I think the brick being loose affords prima facie a presumption that they had not used reasonable care and diligence. It is true that it is possible that from changes in the temperature, a brick might get into the coudition in which this brickwork appears to have been, from causes operating so speedily as to prevent the possibility of any diligence and care applied to such a purpose intervening in due time so as to prevent any accident. But inasmuch as our own experience of these things is that bricks do not full out when brick work is kept in a proper state of repair, I think where an accident of this sort happens, the presumption is that it is not the frost of a single night or of many nights that would cause such a change in the state of brickwork as that a brick would fall out in this way; and it must be presumed that there was not that inspection and that care on the part of the defendants which it was their duty to apply." Lush, J., in concurring, reaches this conclusion by the same chain of reasoning. He says: "It is not a matter of common occurrence for bricks to come loose and to fall from the fabric to which they belong. There must be some cause for it; and no cause is assigned and there is no evidence whatever which would lead to the inference that the brick was suddenly jerked from its place. ** I think therefore in the absence of any explanation whatever of how it was the brick got so loose as to fall down on the passer by, the jury might reasonably have inferred that the company was negligent, and that if they had made a proper inspection they might

(30) See Whitridge v. Barry, 42 Md. 140, 152; Hall v. Eccleston, 37 Md. 510, 820; infra, n. 31.

(31) Jenne v. Marble, 37 Mich. 319, 323; Alben v. Lord, 39 N. H. 196, 203, 204.

have found out the condition of the bridge." In the Court of Exchequer Chamber the judgment below was unanimously affirmed, and the reasoning on which that judgment was based was expressly sanctioned. Kelly, C. J., who wrote the opinion, said: "The learned chief justice in his judgment in the court below said res ipsa loquitur, and I cannot do better than to refer to that judgment." The conclusion reached in this case is unquestionably sound as it rests upon a principle that commends itself to the mind of every one as being not only reasonable but also as more strictly logical than any other which might be invoked in this class of cases. When a casualty occurs which reason or human experience teaches us can or does very seldom if ever happen unless through the negligence of some person, it is certainly a fair inference that the party who is responsible for carelessness in such a case has been guilty of some fault which has caused or contributed to the accident. Not only reason and principle, but convenience and justice sanction this doctrine, for in many cases it would be extremely difficult, if not impossible for the party injured to adduce any other evidence on the question of negligence than that furnished by the accident itself and the circumstances surrounding it; while on the other hand it is nearly always possible and often very simple and easy for the defendant to rebut the presumption of negligence provided there exist the facts by which that presumption may be met and overthrown. This doctrine has been uniformly recognized and adopted both in England and in the courts of the States and of the United States.

In Byrne v. Beadle, 2 Hurl. and Colt. 722, it was held that the mere fact that the plaintiff was injured by a barrel falling from the window of a shop into the highway, created a presumption of negligence. Pollock, C. B., used the following language: "It is the duty of persons who keep [barrels in a warehouse to take care that they do not roll out, and I think that] such a case would beyond all doubt afford prima facie evidence of negligence. A barrel could nol roll out of a warehouse without some negligence." In Scott v. London Dock Co., 3 Hurl. & Colt. 596, the plaintiff was injured by some bags of sugar which fell upon him as he was passing defendant's warehouse. Held, that these

facts established a prima facie case. The court based

rectly in point, as they are cases in which the question arose between a common carrier and a passenger being transported by it. There are in that class of cases two reasons for holding that the mere fact of the accident raises a presumption of negligence, which do not obtain in ordinary cases. In the first place a common carrier owes to the passenger an extraordinary duty and is liable for the slightest degree of negligence. It is therefore but reasonable that slight evidence should afford prima facie proof of carelessness. In the second place it would be impossible in a majority of cases for a party injured under such circumstances to give any other evidence of negligence. The following are the cases in which the rule has been applied as against a common carrier and in favor of the passenger. Denver, etc., R. Co. v. Woodward, 4 Col. 1; Stokes v. Saltonstall, 13 Pet. 181; Railroad Co. v. Pollard, 22 Wall. 341; Balt. & Ohio R. Co. v. Wightman, 29 Gratt. 431; Balt. & Ohio R. Co. v. Noell's administrator, 32 id. 394; Robinson v. N. Y. C. &. H. R. R. Co., 20 Blatch. 338; Rose v. Stephens & Conduit Trans. Co., id. 411; Phila. & Read. R. Co v. Anderson, 94 Penn. St. 351; Sullivan v. Railroad Co., 30 id. 234; George v. St. Louis, I. M. & S. R. Co., 34 Ark. 613; P. C. & St. Louis R. Co. v. Thompson, 56 Ill. 138; Wilson v. Northern Pacific R. Co., 26 Minn. 278; McLean v. Burbank, 11 id. 189; McMahon v. Davidson, 12 id. 357; Fay v. Davidson, 13 id. 523; Edgerton v. N. Y. C. & H. R. R. Co., 39 N. Y. 227; Curtis v. Rochester & Syracuse R. Co., 18 id. 534; Pittsburgh & St. Louis R. Co. v. Williams, 74 Ind. 462; Balt., etc., R. Co. v. Worthington, 21 Md. 275; Youngs v. Kinney, 28 Ga. 111; Zemp v. W. & M. R. Co., 9 Rich. 84; New Orleans, etc., R. Co. v. Allbritton, 38 Miss. 242; Iron R. Co. v. Mowery, 36 Ohio St. 418; Eagle Packet Co. v. Defries, 94 Ill. 598. In this last case it appeared that the plaintiff was injured while passing ashore from defendant's boat, which had landed at a wharf, by the falling of the stage plank over which passengers walked in going ashore. It was held that the fall of the plank under these circumstances created a presumption that defendant had been guilty of carelessness in the performance of its duty.

Thomas v. Western Union Tel. Co., 100 Mass. 156, was an action for injuries to plaintiff's horses. It appeared that the accident was caused by one of the

with one of defendant's wires "which the plaintiff found swinging across the highway at such a height as to endanger ordinary travel." It was held that the fact that the wire was in such a position was prima facie evidence of negligence.

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 management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant that the accident arose from a want of care." The case of Gee v. Metropolitan R. Co., L. R., 8 Q. B. 161, is very similar to that of Kearney v. London, Brighton & South Coast R. Co.(supra). The evidence showed that plantiff who was a passenger upon one of defendant's trains,got up from his seat and put his hand on the bar which passed across the window of the carriage, with the intention of looking out to see the lights of the next station. The pressure of his hand caused the door to fly open and he fell out and was injured. It was held by the Queens Bench, that the circumstances of the accident created a presumption of negligence, and this decision was unanimously affirmed in the Exchequer.

In Christie v. Griggs, 2 Camp. 80, the plaintiff was injured by the breaking down of defendant's coach. Having proved that the axle-tree broke, the plaintiff rested his case. It was insisted that no negligence had been shown, but Sir James Mansfield, C. J., ruled that a presumption of carelessness arose from the mere fact of the accident.

In this country the authorities on the subject are quite numerous, many of them however are not di

In Mullen v. St. John, 57 N. Y. 567, the court decided that the mere fact that plaintiff was injured by the fall of defendant's building created a presumption of negligence. The decision was founded upon the same elementary principle which forms the substance of all the adjudications on the subject, namely: That the occurence of au accident, which will not ordinarily happen without carelessness, affords, in and by itself, apart from any other evidence, a presumption that negligence was the cause of the casualty in that particular instance. This reasoning is expressed in these words: "Buildings properly constructed do not fall without adequate cause. If there be no tempest prevailing and no external violence of any kind, the fair presumption is that the fall occurred through adequate causes such as the ruinous condition of the building which could scarcely have escaped the observation of the owner. The mind is thus led to a presumption of negligence on his part which of course may be rebutted."

In Lyons v. Rosenthall, 11 Hun, 46, the court held that the falling of a box which was being hoisted, afforded prima facie evidence of carelessness.

In Smith v. British Packet Co., 46 N. Y. Supr. Ct. 86, affirmed in 86 N. Y. 408, it was held that the bare fact that plaintiff was injured by the falling of berths on defendant's vessel was prima facie evidence of want of ordinary care. The court say: "The use of ordinary skill and of materials of ordinary strength would enable the builders of the structure that was meant to uphold the berths, to make it secure against the strains and shocks of a sea of not extraordinary violence. These means of this security being at the command of the owners of the steamship, the law presumes that there was negligence when the berths fell."

The plaintiff in Gerlach v. Edelmeyer, 47 N. Y. Supr. Ct. 292, was injured by the fall of an elevator under defendants' control. The jury were instructed that they 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 disposing of the question in these words: "The learned judge charged that prima facie the accident happened through Dittner's negligence, and that the burden of proof was on the defendants to show that Dittner was not negligent. This I think is a'correct statement of the law in this case. The elevator was under the management of defendants' servants, and in the ordinary course of events the accident would not have happened if their servant had been careful The happening of the accident therefore affords evidence, in the absence of explanation, that the accident happened from want of care."

The rule established by these authorities is very simple in itself. The real difficulty consists in determining whether a given state of facts warrant its application. The question is of course always a question for the court. GUY C. H. CORLISS.

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The proprietor of a newspaper is liable for a libel published therein by an employee having full charge of the department where it appears, though such publication was without the proprietor's sanction or knowledge, and his liability is not limited to compensatory damages.

ACTION for libel against defendants who were

proprietors of a newspaper known as the Pittsburgh Commercial Gazette. The facts were these:

A reporter of the paper called upon plaintiff Bruce, a lawyer, and asked him to express his opinion as to the right of a landlord to levy upon goods of a subtenant. Plaintiff stated that a general rule could not be given; but that a person interested should apply to his own attorney for advice as to the matter. Shortly afterward this article appeared in the newspaper mentioned.

"David D. Bruce informs reporters that he considers it unprofessional for him to open his mouth, except he sees or smells a fee somewhere. The query naturally arises in the mind of the reader, who pays him for his lengthy disquisitions in council? He must realize a splendid income from that source if he carries out his principles there as sedulously as he assumes to with reporters. Fortunately for the public, there are other lawyers whose views of professional etiquette do not coincide with Mr. Bruce's."

This article constituted the libel complained of. Plaintiff offered evidence of the facts above set forth, and also of the conversation between the reporter and himself and a subsequent report of it by the reporter

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to one Palmer, that said Palmer had control of the column where the article appeared, without supervision by the proprietors (who knew nothing of the article until after its publication). The purpose of the offer was to show malice on the part of Palmer and to enhance the damages.

The evidence was not admitted, and the court charged "that if the defendants had no personal knowledge of the article before it was published, and in good faith did what was reasonable to make amends and reparation after the facts became known to them, this is not a case for punitive damages.”

The verdict and judgment was $270 in favor of the plaintiff, and plaintiff took a writ of error.

John Dalzell and S. A. McClung, for plaintiff in

error.

A. M. Brown, contra.

MERCUR, C. J. The defendants are the proprietors of a daily newspaper, called the Commercial Gazette, published in the city of Pittsburgh. This suit is to recover damages for the composing and publishing as editorial in the columns of that paper, an article reflecting on the plaintiff, which the jury have found to be libellous.

The first and second specifications of error are to the rejection of evidence, of substantially the same character, offered by the plaintiff. Whether the evidence was properly rejected depends on the liability of the defendants for the conduct of Dr. Palmer, who was one of the editors of the paper. A master is liable for the wrongful act of his servant when the injury is committed by authority of the master, either expressly conferred or fairly implied from the nature of the employment and the duties thereby imposed. 1 Black. Com. 429; Wood Mast. and Serv., § 279. He is liable for the act of his servant, within the scope of his employment, and incident to the performance of the duties intrusted to him, although the specific act of injury be in opposition to the express and positive command of the master. Id., § 305; Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326. This may be said to be the settled rule of law applicable to the liability of masters generally for the acts of their agents.

The liability of the proprietors of a newspaper for the act of an agent, to whose management they have intrusted the paper, is more broad. The proprietor is presumed to have published the libel which appears therein, and in a criminal prosecution therefor, it is no defense for him to show that it was published without his knowledge and in his absence. Rex v. Walter, 3 Esp. 21; King v. Gutch, 1 Moody & Malk. 433; Roscoe Crim. Ev. (6 Am. ed.) 621; Commonwealth v. Morgan, 107 Mass. 199.

The material for this libel appears to have been drawn from the fact that a reporter of the paper sought to "interview" the plaintiff, and asked his opinion, for publication, on a question of law, which the plaintiff declined to give, and stated reasons therefor. The offers, inter alia, were to prove this conversation, and that it was reported to Dr. Palmer who was in the employ of the defendants; that he had the charge and management of the column, in which the article was published, not subject to the supervision of the defendants; that he subsequently wrote, and the defendants published the libel in question; and that Palmer was pecuniarily irresponsible, and is now dead. The defendants objected to the evidence claiming it to be incompetent as the plea was “not guilty" and the only question was that of publication. They made no objection to proving the publication of the libellous article, but claimed their liability was restricted to what they actually published. The court rejected both offers.

If the defendants gave to Palmer such charge and

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