Francis H. (Francis Hermann) Bohlen.

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felled by design or carelessness on the plaintiff's land; nor was
there any evidence to show that w^hen the tree fell there was any
grass or vegetable growth of any kind, or that any actual injury was
sustained by the land. The counsel for the plaintiff requested the
Court to charge the Jury, that when a man, in clearing his land,
fells a tree so that any part of it falls on his neighbor's land, it is
a trespass for which an action of trespass quare clausum f regit can
be sustained. The Court declined giving the instruction as prayed
for, but charged the Jury that every voluntary entry on the land of
another, without his consent, and not sanctioned by the law, was a
trespass for which an action could be brought — that in this case the
plaintiff could not sustain his action, unless they were satisfied from
the evidence that the tree was designedly or carelessly felled by the
defendant so as to fall on the plaintiff's land, or that, by falling on



^Accord: Whitecraft v. Vanderver, 12 111. 235 (1850) : Watkins v. Gale,
13 111. 152 (1851) ; Russell v. Myers, 32 Mich. 522 (1875) ; Perkins v. Hackle-
man, 26 Miss. 41 (1853), no statutory double damages can be recovered where
the defendant had reason to believe he owned the land or had the authority
of the owner, but see Loewenberg v. Rosenthal, 18 Ore. 178 (1889), contra
under the peculiar wording of the statute of that state.

As to the different measure of damages where the trespass is innocent
and where it is intentional, see Herdic v. Young, 55 Pa. 176 (1867) ; Maye v.
Yap pen, 23 Cal. 306 (1863) ; and Winchester v. Craig, Zi Mich. 205 (1876) ;
United States v. Gentry, 119 Fed. 70, 55 C. C. A. 658 (Eighth Circuit. 1902).

If the defendant intends to commit a trespass upon public lands he is
liable to the penalty if the land is in fact the private property of the
plaintiff, Givens v. Kendrick, 15 Ala. 648 (1849) ; Perkins v. Hackleman, 26
Miss. 41 (1853) : Emerson v. Beavaus, 12 ^lo. 511 (1849).

But a master is not liable to such a penalty because his servant of his o\yn
motion intentionally trespasses upon the plaintiff's land and appropriates its
produce for the use of the master's cattle, Potulni v. Saunders, Z7 Minn. 517
(1887).



NEWSOM V. ANDERSON. 69

the plaintiff's land, it had fallen on his grass or vegetable growth of
some Icind. There was a verdict and judgment for the defendant,
and the plaintiff appealed.

/. T. Morchcad for the plaintiff, cited Rev. Stat., ch. 31, § 83;
Dougherty v. Stcpp, i Dev. and Bat. 371 ; Gregory v. Piper, 17 Eng
C L. R. 197.

No counsel appeared for the defendant in this Court.

Daniel, J. To sustain trespass, the injury must in general be
immediate, and committed with force, either actual or implied. If
jthe injurious act be the immediate result of the force originally ap-
pHed by the defendant,' and the plaintiff be injured thereby, it is
the subject of an action of trespass vi et armis, by all the cases both
ancient and modern, [and it is immaterial whether the injury be'
wilf ul o r jiotTl Lcamc v. Bray, 3 East 599 ; 2 Leigh's N. P. 1402.
We think tharthe charge of the Judge was incorrect, when he said
"that the plaintiff could not recover, unless the tree was designedly
or carelessly felled by the defendant, so as to fall on the plaintiff's
land, or that, by falling on the plaintiff's land, it had fallen on
his grass or vegetable growth of some kind." The ground of
the action, Q. C^.F. is the injury to the possession (3 Black.^
Com. 210; I Term R. 480), and that, whether^ the injury
extends to the plaintiff's land in the mineral or vegetable king-
dom. Is not the felling of trees on a person's land and encum-
bering it with rubbish an injury to the possession? We think it is.
Where a master ordered his servant to lay down a quantity of
rubbish near his neighbor's wall, but so that it might not touch the
same, and the servant used ordinary care in executing the orders
of his master, but some of the rubbish naturally ran from the pile
against the wall, it was held that the master was liable in trespass.
Gregory v. Piper, 17 Eng. C. L. 454.

We are of the opinion that there must be a new trial.

Per Curiam. New trial awarded.

Compare Y. B. 6 Edw. IV, 7 pi. 18, ante.

So one casting upon the land of another rocks and debris by blasting is
guilty of trespass qtiare claiisum frcgit. Hav v. Cohocs Co.. 2 N. Y. 159
(1849) ; Scott v. Bay, 3 Md. 431 (1853) ; Bessemer &c. Co. v. Doak, 152 Ala.
166 (1907) ; G. B. & L. Ry. Co. v. Eagles, 9 Colo. 544 (1886), "in general,"
says Helm, J., in the last named case, "if a voluntary act, lawful in itself, may
naturally result in the injury of another or the violation of his legal rights,
the actor must at his peril see to it that such injury or such violation does not
follow or he must expect to respond in damages therefor : and this is true re-
gardless of the motive or the degree of care with which the act is done.
Perhaps, on the ground of public policy, an injunction to restrain the exca-
vating of the defendant company's road-bed would not have issued at the
suit of plaintiff, even though blasting were necessary; but public policy could
not exonerate the company from liability for private damage directlv result-
ing from its acts." See also, note 2 to Fitcsimoiis &■ Conmell v. Brnuu &■
Pitts, post, and cases cited therein, and see Lan'son v. Price, 45 Md. 123 (1876),
where the defendant in cutting timber along a stream within his own land
allowed branches, etc., to fall therein, thereby obstructing the plaintiff's mill-
race, "The question." said Alvey. J., "is not whether the defendant acted with
due care, but whether his acts have occasioned the damage complained of "

To constitute trespass quare clausum frcgit it is not necessary to person-



70 THE NITRO-GLYCERIXE CASE.

ally invade the plaintiff's close, and it is enough if one deliberately throws
stones against his house or door, Prewitf v. Clayton, 5 T. B. Monr. 4 (Ky.
1827), or casts a dead animal from the road into his well, Emory v. Callings,
1 Harrington 325 (Del. 1832), or shoots over the plaintiff's land so that the
shot or the game killed falls upon it, Lord Ellenborough in Pickering v. Rudd,
1 Starkie 46 (1815) ; Whittaker v. SMugvick, 100 :\Iinn. 386 (1907) ; and see
Forbell V. City of New York, 164 N. Y. 522 (1900), where the defendant by
the use of powerful pumps, some distance from the plaintiff's land, deliber-
ately sucked all the water from the plaintiff's soil.



THE NITRO-GLYCERINE CASE.

(Parrot v. Wells, Fargo & Co.)

Supreme Court of the United States, 1872. 15 Wallace 524.

In i866 the defendants, who were expressmen engaged in carry-
ing packages between New York and California, by way of the
Isthmus of Panama, received at New York a box containing nitro-
glycerine to be carried to California. There was nothing in the
appearance of the box tending to excite any suspicion of the char-
acter of its contents. It was received and carried in the usual
course of business, no information being asked or given as to its
contents. On arriving at San Francisco, California, its contents
were leaking and resembled sweet oil. The box was then taken for
examination, as was the custom with the defendants when any box
carried by them appeared to be damaged, to the premises occupied
by them, which were leased from the plaintiff. Whilst a servant
of the defendants, by their direction, was attempting to open the
box the nitro-glycerine exploded, injuring the premises occupied by
them and other premises leased by the plaintiff to, and occupied by,
other parties. The defendants had no knowledge of, and no reason
to suspect, the dangerous character of the contents. They repaired
the injuries to the premises occupied by them.^

Mr. Justice Field, after stating the facts of the case, delivered
the opinion of the court, as follows :

The question presented to us is, whether upon this state of facts
the plaintiff is entitled to recover for the injuries caused by the
explosion to his buildings, outside of that portion occupied by the
defendants under their lease.

The defendants, being perfectly ignorant of the contents of the
case, received in the regular course of their business, were not guilty
of negligence in introducing it into their place of business and
handling it in the same manner as other packages of similar out-
ward appearance were usually handled. "Negligence" has been
defined to be "the omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate the conduct
of human affairs, would do, or doing something which a prudent



^ The statement of facts is taken from the head note and only a part of
the opinion is given.



THE NITRO-GLYCERINE CASE. 7 1

and reasonable man would not do." {Blyth v. Birmxngton Water
Works, II Exchequer, 784.) It must be determined in all cases by
reference to the situation and knowledge of the parties and all the
attendant circumstances. What would be extreme care under one
condition of knowledge, and one state of circumstances, would be
gross negligence with different knowledge and in changed circum-
stances. The law is reasonable in its judgments in this respect. It
does not charge culpable negligence upon any one who takes the
usual precautions against accident, which careful and prudent men
are accustomed to take under similar circumstances.

This action was not brought upon the covenants of the lease ;
it is in trespass for injuries to the buildings of the plaintiff, and the
,gist of the action is the negligence of the defendants : unless that
be £stablish€4, they are not liable. The mere fact that the injury
has been caused is not sufficient to hold them. No one is responsible
for injuries resulting from unavoidable accident, whilst engaged in
a lawful business. A party charging negligence as a ground of ac-
tion must prove it. He must show that the defendant, by his act
or by his omission, has violated some duty incumbent upon him,
which has caused the injury complained of.

The cases between passengers and carriers for injuries stand
upon a dift'erent footing. The contract of the carrier being to carry
safely, the proof of the injury usually establishes a prima facie
case, which the carrier must overcome. His contract is shown,
prima facie at least, to have been violated by the injury. Outside
of these cases, in which a positive obligation is cast upon the carrier
to perform safely a special service, the presumption is that the
party has exercised such care as men of ordinary prudence and
caution would exercise under similar circumstances, and if he has
not, the plaintiff must prove it.

Here no such proof was made, and the case stands as one of_
unavoidable accident, for the consequences of which the defendants
are not responsible. The consequences oi all such accidents must
be borne by the suffere,r as his misfortune.

The principle is recognizee! and affirmed in a great variety of
cases — in cases where fire originating in one man's building has ex-
tended to and destroyed the property of others ; in cases where in-
juries have been caused by fire ignited by sparks from steamboats
or locomotives, or caused by horses running away, or by blasting
rocks, and in numerous other cases which will readily occur to
every one. The rule deducible from them is, that the measure of
care against accident, which one must take to avoid responsibility,
is that which a person of ordinary prudence and caution would use
if his own interests were to be aft'ected, and the whole risk were
his own.

And the principle is not changed whether the injury Complained
of follows directly or remotely from the act or conduct of the party.
The direct or remote consequences of the act or conduct may de-
termine the form of the action, whether it shall be case or trespass,



72 PILLOW AND WIFE V. BUSHNELL.

where the forms of the common law are in use, but can not alter the
principle upon which liability is enforced or avoided.

Judgment Affirmed.^



^



SECTION 4.
Plaintiff's Consent.



(a) Trespass to the person.



PILLOW AND WIFE v. BUSHXELL.
Supreme Court of New York, 1849. 5 Barh. 156.

This was an action brought by husband and wife, for an as-
sault and battery on the wife, tried at the Columbia circuit before
Justice Cady, in October, 1848. The plaintiffs, some time after
their marriage, had joined the society of Shakers, at New Lebanon.
The husband abandoned the society, and afterward, in August,
1847, went back to New Lebanon for the purpose of taking away
his wife. She was unwilling to leave, and the assault and battery
charged was that the defendant had rescued the wife from her hus-
band when he had her by the arm taking her out of the house. The
defense was that in what the defendants did they acted by the con-
sent and at the request of the wife.

The judge, among other things, charged the jury, that if they
were satisfied that no assault had been committed upon her, or that
what was done by the defendants was with her consent and con-
currence and by her desire, they must find a verdict for the defend-
ants ; for if she, being the party assaulted, consented to the assault.



^ See Losee v. Buchanan, 51 N. Y. 476 (1875). See also, Brown v.
Collins, 53 N. H. 442 (1873), where the defendant's horse ran away and ran
into and injured a post on the plaintifif's property; Doe, J., said, p. 450,
"There are many cases where a man is held liable for taking, converting —
Cheshire R. Co. v. Foster, 51 N. H. 490 — or destroying property, or doing
something else, or causing it to be done, intentionally, under a claim of right,
and without any actual fault. 'Probably one-half the cases, in which trespass
de bonis asportatis is maintained, arise from a mere misapprehension of legal
rights.' Metcalf, J., in Stanley v. Gaylord, 1 Cush. 536 (Mass. 1848). When a
defendant erroneously supposed, without any fault of either party, that he had
a right to do what he did. and his act, done in the assertion of his supposed
right, turns out to have been an interference with the plaintiff's property, he
is generally held to have assumed the risk of maintaining the right which he
asserted, and the responsibility of the natural consequences of his voluntary
act. But when there was no fault on his part, and the damage was not caused
by his voluntary and intended act; or by an act of which he knew, or ouglit tr
have known, that damage would be a necessary, probable, or natural conse-
quence; or by an act which he knew, or ought to have known, to be unlawful,
— we understand the general rule to be, that he is not liable."



MOHR v. WILLIAMS. 73

if one was proved to have been committed, the action would not
lie. The plaintifif's counsel excepted to that part of the charge which
held that her consent constituted a defense. And the jury found a
verdict for the defendants.

Parkier, J. As to the other charge presented, I am equally well
satisfied that the charge was correct. If the act complained of as an
assault and battery was committed by the consent and request of the
wife, it formed an entire defense. But the ruling at the circuit (that
the wife was a competent witness against her husband) having been
erroneous on the first point, there must be a new trial. Costs to abide
the event.^



MOHR V. WILLI A^IS.

Supreme Court of Minnesota, 1905. 95 Minn. 261.

Brown, J. Defendant is a physician and surgeon of standing
and character, making disorders of the ear a specialty, and having
extensive practice in the city of St. Paul. He was consulted by
plaintiff, who complained to him of trouble with her right ear, and,
at her request, made an examination of that organ for the purpose
of ascertaining its condition. He also at the same time examined
her left ear, but, owing to foreign substances therein, was unable
to make a full and complete diagnosis at that time. The examina-
tion of her right ear disclosed a large perforation in the lower part
of the drum membrane, and a large polyp in the middle ear, which
indicated that some of the small bones of the middle ear (ossicles)
were probably diseased. Pie informed plaintiff of the result of his
examination, and advised an operation for the purpose of removing
the polyp and diseased ossicles. After consultation with her family
physician, and one or two further consultations with defendant,
plaintiff decided to submit to the proposed operation. She was not
informed that her left ear was in any way diseased, and understood
that the necessity for an operation applied to her right ear only.
She repaired to the hospital, and was placed under the influence of
anaesthetics ; and, after being made unconscious, defendant made a
thorough examination of her left ear, and found it in a more seri-
ous condition than her right one. A small perforation was dis-
covered high up in the drum membrane, hooded, and with granu-
lated edges, and the bone of the inner wall of the middle ear was
diseased and dead. He called this discovery to the attention of
Dr. Davis — the plaintift''s family physician, who attended the opera-



^In Christopherson v. Bare, 11 Q. B. 473 (1848), a plea of consent to a
count of assault was held bad. Denman. C. J., saying (p. 477) : "It is a mani-
fest contradiction in terms to say that the defendant assaulted the plaintitt by
his permission"; Pattison. J., saying: "An assault must be an act done against
the will of the party assaulted ; and therefore it cannot be said that a party has
been assaulted by his permission;" and Coleridge, J., saying that "If the plea
had been not guilty, the defendant might have shown that the act was done in
the course of sport between the parties, and by the plaintiff's leave."



74



MOHR V. WILLIAMS.



tion at her request — who also examined the ear and confirmed de-
fendant in his diagnosis. Defendant also further examined the
right ear, and found its condition less serious than expected, and
finally concluded that the left, instead of the right, should be oper-
ated upon ; devoting to the right ear other treatment. He then per-
formed the operation of ossiculectomy on plaintiff's left ear; remov-
ing a portion of the drum membrane, and scraping away the dis-
eased portion of the inner wall of the ear. The operation was in
every way successful and skilfully performed. It is claimed by
plaintiff that the operation greatly impaired her hearing, seriously
injured her person, and, not having been consented to by her, was
wrongful and unlawful, constituting an assault and battery; and she
brought this action to recover damages therefor.

The last contention of defendant is that the act complained of
did not amount to an assault and battery. This is based upon the
theory that, as plaintiff's left ear was in fact diseased, in a condi-
tion dangerous and threatening to her health, the operation was
necessary, and having been skilfully performed at a time when
plaintiff had requested a like operation on the other ear, the charge
of assault and battery can not be sustained ; that, in view of these
conditions, and the claim that there was no negligence on the part
of defendant, and an entire absence of any evidence tending to show
an evil intent, the court should say, as a matter of_ law, that no
assault and battery was committed, even though she did not consent
to the operation. In other words, that the absence of a showing
that defendant was actuated by a wrongful intent, or guilty of neg-
ligence, relieves the act of defendant from the charge of an unlaw-
ful assault and battery.

We are unable to reach that conclusion, though the contention is
not without merit. It would seem to follow from what has been said
on the other features of the case that the act of defendant amounted
at least to a technical assault and battery. If the operation was
performed without plaintiff's consent, and the circumstances were
not such as to justify its performance without, it was wrongful;
and, if it was wrongful, it was unlawful. As remarked in i_ Jag-
gard. Torts, 437, every person has a right to complete immunity of
his person from physical interference of others, except in so far as
contact may be necessary under the general doctrine of privilege;
and any unlawful or unauthorized touching of the person of an-
other, except it be in the spirit of pleasantry, constitutes an as-
sault and battery. In the case at bar, as we have already seen, the
question whether defendant's act in performing the operation upon
plaintiff was authorized was a question for the jury to determine.
If it was unauthorized, then it was within what we have said, un-
lawful. It was a violent assault, not a mere pleasantry ; and, even
though no negligence is shown, it was wrongful and unlawful. The
case is unlike a criminal prosecution for assault and battery, for
there an unlawful intent must be shown. But that rule does not
apply to a civil action, to maintain which it is sufficient to show that
the assault complained of was wrongful and unlawful or the result



CADWKLL Z'. FARRELL. 75

of negligence, i Addison, Torts, 689 ; Lander v. Seaver, 32 Vt.
114; Vosburg v. Putney, 80 Wis, 523, 50 N. W, 403.

The amount of plaintiff's recovery, if she is entitled to recover
at all, must depend upon the character and extent of the injury in-
flicted upon her, in determining which the nature of the malady
intended to be healed and the beneficial nature of the operation
should be taken into consideration, as well as the good faith of the
defendant.

Orders affirmed. \



CAD WELL V. FARRELL. ^/^^

The Supreme Court of Illinois, 1862. 28 ///. 438.

Walker, J. It is insisted that there is a misjoinder of counts
in this declaration ; that the sixth count is in trespass, whilst the
others are in case. This is the only question raised upon this record.
If this objection is well taken, the court below erred in refusing to
arrest the judgment. The sixth count avers that appellee had a spot
on her left eye, which injured her personal appearance, and that
appellant falsely, fraudulently and deceitfully represented and pre-
tended to appellee, that by means of his skill and knowledge as an
oculist, that he could remove tb.e blemish from her eye, and render
its appearance equal to that of her right eye, without any injury to
the right eye ; and that he would not take out or destroy her left
eye, and that she would be well and free from the effects of the
treatment in six or seven days.

That appellee, confiding in the truth of the representations
thus made by appellant, and believing them to be true, was deceived,
and thereby induced, at his special instance and request to treat her
left eye, to make it look as well as the right eye, for the sum of
thirty dollars, which she paid to him. But that appellant, well know-
ing as aforesaid, falsely and maliciously pretended to operate on
appellee's left eye, for the pretended purpose of causing it to look
as well as her right eye, and to remove the spot therefrom ; and did
cut and lacerate the left eye, by means of which cutting and lacerat-
ing and tearing of the left eye, she suffered great pain ; and that in
consequence thereof, her right eye became greatly inflamed, and she
suffered great pain, and was obliged to lay out and expend large
sums of money for medical attendance for her cure, and was unable
to perform labor for a long space of time.

It is urged that this count charges the operation to have been
performed with malice, and th at a direct injury to the person,
prompted bxjmalk.e,^ CQtTstjLtutes .a_lresj2ass^ for wliich case caa noL-
be sustained. Direct and immediate force employed by one person
against another, without his consent, with malice, constitutes tres-
pass, however slight the injury produced ; but it is otherwise when
the force used is with the consent or at the request of the person
against whom employed. If a dentist extract a tooth for a person



V^6 CADWELL V. FARRELL,

at his request, whether necessary or not, it is no wrong ; but if un-
skilfully performed, he would become liable in case for the injury
resulting from a want of proper skill. If the same act were per-
formed with malice, and without consent, it would be an aggravated
trespass, if not a crime. In this case, the operation was performed
at the request of appellee. This prevents her from recovering in
trespass, and had the operation been skilfully performed, she could
have had no right of recovery in any form of action ; but if the
representations which induced the retainer were false and fraudu-
lent, or if the proper skill was not employed, then case is properly