Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

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Professor of Law, University of Pennsylvania





Copyright 1915




The preparation of a collection of cases on the law of Torts
has certain difficulties peculiar to itself. In perhaps no other im-
portant branch of the law is there so little agreement as to what
should be included or how this should be classified and arranged.

The law of Torts is so vast, it touches so many fields of human
activity, it shades insensibly into so many other branches of the law
that it is extremely difficult to decide what should be included and
what should be left out.

There is one boundary always fixed ; a case book must primarily
be a book to be used in an actual course in an actual school. ' And
in no law school is more than three hours a week for one year de-
voted to the subject. ^luch must therefore be omitted. In fact,
the problem is to select from a number of subjects, all of which in
reality ought to be treated, those w'hich can be omitted with the
least harm.

Many subjects, which should perhaps be taught in a course on
Torts, are customarily taught in all or the majority of law schools
in the courses on the law of Property or Persons or other subjects.
There is no universal agreement as to the proper place for such
subjects as Conversion or Nuisance, either in its narrower or broader
meaning. In at least one, and that a very recent, valuable, and sug-
gestive collection of cases, the whole subject of Fraud and Deceit
is omitted. The editor of the present collection, while perhaps some-
what influenced by the arrangement of courses in his own school, that
of the University of Pennsylvania, has in his selection of subjects
within this debatable territory sought to include primarily those,
which in the great majority of schools are usually taught only in the
course on Torts, and has not included those, though appearing to him
to properly fall within that course, if they are generally covered in
other courses, unless they contain so valuable an exposition of the
principles of tort law that their exclusion would seriously injure the
development of the subject.

Coming now to the classification and arrangement of the mat-
ter included :

The method used by the older text writers was to adopt a purely
procedural. classification. The whole subject was divided in accord-
ance with the form of action appropriate for the redress of particular
wrongs. Principles, which determined the liability in a particular
form of tort action and the defenses thereto, were stated as though
distinct from those applicable to any other form of tort action.

There was little or no efifort to ascertain the fundamental prin-
ciples underlying the law of Torts as a whole. Even if certain prin-




ciples appeared as determinative of liability, if certain defenses were
seen to be available, in two or more actions, this was taken to be a
mere accidental coincidence rather than a proof of the existence of
some principle generally applicable to at least that field of the Tort

This method, still used by many able text writers, is entirely
opposed to the trend and spirit of the modern study of law. But
among even modern students of the law of Tort there is little or
no unanimity as to the proper way of arranging the subject so as
to best present to the student its general principles and philosophy.
There is no accepted standard. Each writer must adopt his own
arrangement. He must not expect that it will entirely satisfy every
one, or indeed, any one. Perhaps he can hardly expect to satisfy
even himself.

But wdiile classification solely in accordance with the forms of
action is undoubtedly unscientific and unsatisfactory, it is still that
which to the mind of the legal profession has surrounding it the halo
of tradition, and to no profession is tradition more sacred.

After all is said and done, case books are intended to educate
practicing lawyers. To teach students a conception of a great
branch of the law which runs counter to the prejudices, even if they
be prejudices, of the bar of which they will be young and unim-
portant members and of the court before which they are to prac-
tice, would be to expose them to the sincere, even if erroneous, criti-
cism of their elders as being fanciful theorists and so would seriously
handicap them in their profession. In addition the student, w^hen
he first comes to the bar, is himself apt to be governed by the criti-
cism of its older members who, to his' mind, have demonstrated their
ability through success in acquiring lucrative practice. There is a
danger, therefore, that he would be led himself to condemn liis
teacher and to reject all that he had been taught.

To the editor it has always seemed that the law teacher must
be very sure of his ground before he commits himself to teaching
the student any revolutionary viev/ of his subject or adopts any
personal arrangement of it entirely contrary to that accepted by the
profession. The proper place for him to set forth such views
is in his essays and text books, by which he will, if his views
be sound, convince at least that part of the practicing profession
whose minds have not become entirely calloused to new impressions.

Therefore the present collection of cases is not framed along
revolutionary lines. It contains no very novel classification. The
old division into actions is retained whenever helpful to explain the
historical development of general principles, or whenever the subject-
matter is so distinct that the application of those principles thereto
can best be studied in this way.

One of the most serious disadvantages of the immense range of
the subject is that it practically precludes the possibility of the
adopting to the full the historical method of presenting its develop-
ment. In more restricted subjects it is possible to give cases in
which the development of the underlying principles are traced from
their first rudimentary appearance to their most recent exhibition


'n their most highly developed form. In so large a subject as the
law of Torts it is impossible to show the precise case in which some
misconception of an early judge has led to a perversion of a doc-
trine originally sound, or to show the point where some wise and
far-seeing jurist has boldly refused to allow the present and the
future to be bound by the swaddling bands of the thought of a dead
and gone past.

It is, however, often absolutely essential to devote space, which
"the practical lawyer" may think better applied to an exposition of
the rules now in force, to a study of the historical development of
some particular subject. Such a study often clears up and explains
some apparent inconsistency or anomaly which must remain a per-
plexing and insoluble mystery to one who knows only the latest
cases and regards the modern law as springing ready wigged and
gowned from the head of Themis as Athene is said to have sprung
from the head of Zeus. In such case the history of the law is not
merely interesting to the scholar, but vital and essential to even the
most practical minded student.

For example, the modern lawyer and even the lawyer in em-
bryo — the law student — has become so habituated to the modern
conception of an actionable tort as containing two essential elements,
wrongdoing, moral or social, and damage or harm resulting there-
from, that he must needs seek an explanation for the fact, that many
misdeeds are actionable though causing no actual or tangible harm,
in the idea that there arc rights so absolute that from their mere
invasion the law presumes or imports damage, though none in fact
exists.^ So he accounts for the fact that conduct is often treated as
tortious which lacks any element of actual wrongdoing, either moral
or social, by an altogether arbitrary conception of legal as distin-
guished from actual wrong. Nor does he perceive that by so doing
he denies to the wrongful character of the defendant's conduct any
value as an element determining his responsibility for its conse-

A comparatively brief historical study shows that the right of
private action was originally regarded not as a right to compensa-
tion for the harm done the claimant, but rather as a right to the
satisfaction of the grievance felt by one against whom an offense
had been committed, and that this primitive conception had by no
means spent its force when the introduction of the writ of trespass
furnished the starting point for our present law of Torts. On the
contrary it is found constantly reflected, expressly or by implica-
tion, in the various actions brought under that writ. So too the
primitive law naturally conformed itself to the mental attitude of
those, whose grievances, to preserve the peace of the group, it un-
dertook to satisfy. And thus the earlier cases under the writ of tres-

^ The true nature and function of ?uch so-called presumptions has been
so clearly pointed out by so many able writers, by none more clearly or
forcibly than by that great scholar and honest-minded thinker, the late Pro-
fessor James Bradley Thayer, that no sincere student can to-day rest satisfied
with such an explanation.


pass continue to reflect the mental attitude of primitive mankind,
which resented an offense as such, quite irrespective of the moral
or social fault of the oft'ender, and even sought satisfaction from an
inanimate or merely animal cause of oft'ense.

These primitive conceptions have survived with peculiar per-
sistency in actions of trespass to real and personal property, and
those actions on the case, which are cognate thereto. This is
due, as Sir Frederick Pollock points out in the first chapter of his
work on the law of Torts, to the fact that the trespass, because of
its procedural advantages, was early used for the assertion and vin-
dication of title to and possession of real property, in lieu of the
common law writ of right and the various original forms of pos-
sessory real action. Similarly the action of trespass to personal
property and its derivative, the action on the case for trover, were
used to try the title to personal property and to secure to the pos-
sessor of such property at least a money equivalent, when deprived
of it by the unauthorized act of another, no matter how innocent.
While the writ of trespass so used ceases to be a tort action except
in form and becomes in substance a property action, trespass to prop-
erty has held its place in the law of torts, not only because of the
tendency to procedural rather than substantive classification, but also
because many trespasses of this sort do actual harm and are morally
and socially culpable.

The first part of Book I is devoted to a rather elaborate scru-
tiny of the various formed actions of Trespass, and particularly to
the cases which concern the place therein of injury to the plaintiff,
the defendant's volition or will to do the act complained of and the
moral or social culpability of his conduct. The latter part of
Book I deals with the writ of Disseisin and with the action of
Trover, closely akin in scope and content to trespass to real and per-
sonal property.

Thus the way is cleared for the cases contained in Book II, ex-
hibiting the development in the action of Trespass on the case of
the more modern conception of tort liability, which requires a con-
currence of fault, moral or social, on the part of the defendant,
actual tangible harm suffered by the plaintiff and a relation of cause
and effect between the two, sufficient to require the wrongdoer to
answer for the harm he brings about.

The principal topics therein discussed are the liability for mis-
feasance and nonfeasance, the elements which determine the wrong-
fulness of positive action and the conditions or relations whjch
create an obligation to act for the protection of others, the char-
acter of the harm sufficient to entitle the sufferer to redress, and
the causal connection which must exist between the defendant's act
or omission and the plaintiff's harm in order that the defendant may
be required to make compensation therefor. There are also included
cases which show a survival of the primitive idea that one doing
harm must make it good, though free from personal fault. And a
persistence of the equally primitive idea that no actual harm is re-
quired if the plaintiff's principal interests are directly and inten-


tionally offended is shown in a few more or less scattered cases,
where new interests not within the scope of the writ of trespass are
given protection by an action on the case. And finally it includes
that most interesting:: exhibition of the legal enforcement of accepted
ethical ideas, the action of Deceit, in which is judicially expressed
the i^rowth of the modern sense of decency and honor in commer-
cial transactions and so much of Slander and Libel as deals with the
prima facie liability of the publisher of defamatory statements.

Book III deals with those circumstances which repel a prima
facie liability, or to express it somewhat differently, which for va-
rious reasons relieve from liability one guilty of what would in gen-
eral be actionable wrongdoing. In the first two parts are collected
cases showdng, in the one the earliest, in the other the most modern
and living, justification of otherwise prohibited conduct. In the
third are' given cases in which, while the defendant's conduct is not
justified or excused, the plaintiff, wdiose own fault concurs with
that of the defendant in bringing about his harm, is refused redress
from his fellow delinquent.

It may be objected that there is no dift'erence in principle or
effect between the immunity given to the intentional use of force
in self-defense, or to the personal assertion of rights without re-
course to the aid of legal process, and that granted to many acts
otherwise wrongful, because, though injurious to the individual, the
interest of society requires that it shall not be discouraged by fear
of liability. There does, however, seem to be a real difference even
in theory, between permitting an act though wrongful to be done un-
der certain circumstances without responsibility and regarding an
act as, if not meritorious, at least not wrongful, because, though it
injure some private interest, it conduces to the good of society and
the dift'erent manner in which the tw^o were pleaded shows that this
difference was recognized by that most technical of early lawyers,
the special pleader. But apart from this, the dift'erences between
the two are many and striking.

The right of self-defense is one of the first limitations upon the
absolute liability of an offender, the tolerance of harmful acts because
of their social convenience, wdiile appearing in a rudimentary form in
a few earlier cases, is, as a general principle, modern. The one is in-
dividualistic, dealing only with the interest of those directly con-
cerned. The other is collectivist, regarding the group or society as
a party to be considered even in determining the relations of one in-
dividual to another. The one. like the offenses redressed in the writ
of trespass, was early crystallized into a rigid body of settled rules,
having a limited field' of operation, which have undergone little or no
change. The other reflects a change in philosophic thought, a revolt
from that extreme individualism which culminated at about the mid-
dle of the nineteenth century, and, itself still developing and expand-
ing as its underlying philosophic concept is more and more fully ac-
cepted bv public opinion, is applied to solve the new problems con-
stantly presented by the changing conditions of an expanding civ-
ilization. Important as it is now. it seems safe to predict that its
force has not yet been fully felt. Yet even now it is, and more and


more it will become, the most living and dominant factor in the ju-
dicial regulation of the relations of mankind inter se.

It touches nearly every field of human effort, it limits on the
one hand individual freedom, on the other it preserves it ; it sets a
boundary between the fields of permissible endeavor to attain mu-
■ually conflicting ends; it determines the quantity of use permitted
to individuals drawing from a common fund of natural resources ;
it sets rules to the battle between contending classes, each striving
for its own economic advantage at the cost of the other.

It is concerned with the most vital, the most important, and at
the same time the most fluid and unsettled problems of human life.
Not only does every new development of commerce, of manufacture,
every new invention, every new habit and method of living, raise
new questions, but the answer given is and must be itself varying
and changing with every settled change of public opinion. No
final answer can ever be found satisfactory for all time or
in every place. It is not a matter which can be settled by
hard and fast unchanging rules of law. The problem is essentially
sociological, economic and political. It is here that the study of
law touches and blends with a knowledge of development of other
lines of human thought and affairs. At most the law can only aim
to express the consensus of public opinion, and this opinion must
vary with changed external conditions and even more with that
mental change which accompanies the acquisition of political power,
and so of social importance, by large classes of mankind, whose
needs and desires have heretofore gone unexpressed or, if expressed,

The subject is so absorbingly interesting that the necessity of
brevity seems here a very real misfortune. Yet it is so vast that
any effort to cover it fully would spread the collection to an alto-
gether unteachable bulk.

As it is manifestly impossible even to attempt to cover the en-
tire field, all that has been done is to give cases showing the man-
ner in which the problem has been dealt with in some of the more
usual and important situations.

The editor desires to express his obligation to Miss Miriam
McConnell of the Philadelphia Bar, who assisted him in the collec-
tion of the cases in a large part of Book II, and to the staff of the
Biddle Law Library of the University of Pennsylvania, in which
the present collection of cases was compiled.

On page xxiii will be found a list of essays containing valuable
discussions of the subjects included in the present collection of







Trespass Vi et Armis 1


Section 1. — Assault 10

Section 2. — Battery 22

Section 3. — False Imprisonment 27

Section 4. — Trespass to Real Property 36

Section 5. — Trespass to Personal Property 40


The Essential Elements of Trespass.

Section 1. — Injury to the Plaintiff 43

(a) Assault 43

(b) Battery 44

(c) False imprisonment 44

(d) Trespass to real property 44

(e) Trespass to personal property 45

Section 2. — Volition and Intention 45

(a) Trespass to the person 45

(b) False iinprisonmcnt 49

( c ) Trespass to property 50

Section 3. — Culpability 51

(a) Trespass to the person 55

(b) False imprisonment 63

( c ) Trespass to property 64

Section 4. — Plaintiff's Consent 72

(a) Trespass to the person 72

(b) False imprisonment S2

(c) Trespass to property 86

Section 5. — Trespass ab Initio 87


Disseisin and Conversion.


Disseisin 94





coxversion 96

Section 1. — Nature of Plaintiff's Right 97

Section 2. — Character of Defendant's Act 101

(a) Intent to acquire property or possession or assert a

right thereto 101

(b) Knozvledgc that the chattel is the subject of property 107

(c) Intent to deal zvith the chattel lUS

Section 3. — Nonfeasance 109

Section 4. — Misfeasance 112

(a) Sale and delivery of possession 112

(b) Purchase and taking possession thereunder 132

(c) Wrongful taking and asportation 135

(d) Destruction of and injury to chattels 153

(e) Misfeasance by bailees, servants and agents 155

Section 5. — Donand and Refusal lO

Section 6. — Effect of Offer to Return the Chattels Converted 175





Active Misconduct.


Intentional interference with Personal and Property Rights 177


Acts Wrongpix Because Probably Injurious to Others 188


Harms Not RtCARDEO as Legal Injury 214


Proximate and Remote Cause.

Section 1. — Concurrent Cause 223

Section 2. — Direct Consequences 229

Section 3. — Natural, Though Indirect Consequences 232

Section 4. — Intervening Agents 251

(a) Natural forces 251

(b) Instinctive acts of human beings and animals 266

(c) Negligent or deliberate acts of third persons 283


Duty to Take Positive Action for the Protection or Benefit of Others.



Moral Obligation and Legal Duty 299


Duties Attached to the Tenure of Land, Incumbency of Office, and
THE Exercise of Trades and Professions 306


Duties Attached to Relations Voluntarily Entered Into 308

(a) Torts and Contracts 316

(b) Voluntary Assumption of Risk JJ'J

Duties Created by Legislative Enactments and Municipal Ordi-




Duties and Liabilities of Persons Occupying Certain Specific Relations.


Owners, Occupiers and Users of Real Estate. _

Section l.—Tozivrds Persons and Property Outside the Boundaries

of the Premises .• • • • 363

Section 2.—Tozvards Those Coming Voluntarily Upon the Premises. 3/7

(a) Trespassers 377

(b) Infant trespassers _ • • • 39o

(c) Licensees— Persons coming upon the premises for

their own purposes and benefit 414

(1) By the occupier's express or tacit permission.. . 414

(2) At the occupier's invitation— express or implied 422

(d) Persons coming upon the premises for purposes in

which the occupier has an interest 434

(1) Social guests 4j4

(2) Business guests 43/


Vendors and Lessors of Real Estate.

Section 1. — Vendors 4m

Section 2. — Lessors 4o6


Persons Supplying Chattels for the Use of Others.

Section 1. — Gratuitouslv 469

Section 2.— For Use for the Purpose of the Supplier's Business 472

Section 3. — By Lease and for Hire 488

Section 4. — By Sale 494


Liability of Manufacturers of Chattels to Persons Not in Privity
OF Contract with Them 49o





Section 1. — Ownership and Keeping of Animals 524

(.a) Trespass upon real property 524

(b) Damage other than trespass upon real property 533

Section 2. — Liability for Fire 556

Section 3. — Liability for Escape of Substances Collected or Kept

upon Land 559

Section 4. — Liability of Persons Doing Inherently Dangerous Work. 609

Liability for the Acts and Omissions of Independent Contractors.. . 614


Action on the Case for Statements Made to the Plaintiff or Concerning
Him or His Property, Trade, Business, or Profession.


V Fraud and Deceit 657

Section 1. — Falsity of Statement 668

Section 2. — Defendant's Intent and Motive 671

Section 3. — Promises and Statements of Intention 676

Section 4. — Defendant's Want of Belief in the Truth of the Fact

Asserted 691

Section 5. — Plaintiff's Right to Rely on the Defendant's Statements. 721

(a) Statements made to persons other than plaintiff 721

(b) Statements of law ' 737

(c) Statements of opinion 739

(d) Statements of value or of price paid 741

(e) Statements of quality open to observation or inves-
tigation 760

Section 6. — Plaintiff's Reliance on the Defendant's Statements 772

Section 7. — Damage 778


«/ Defamation 786

Section 1. — Slander 789