Francis H. (Francis Hermann) Bohlen.

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Conn., 521, in support of his claim. But that case furnishes no aid
to the defendant. The plaintiff there sought to recover damages
of the defendants for discontinuing their supply of gas to the
plaintiff. The declaration set forth tliat it was the duty of the de-
fendants to continue to supply the plaintiff with gas, but no facts
were stated going to show the existence of any duty or obligation
on the part of the defendants to continue the supply, and the court
held that, so far as the declaration showed to the contrary, the de-
fendants had a right to discontinue the supply of gas at their pleas-
ure, and that in such case the allegation that the act of shutting off
the gas was done willfully and maliciously was of no avail to the
plaintiff. Here the claim is that the injury is too remote ; that the
plaintiff is only affected through his contract liabilitv with the town.
But it is easy to see that if the defendant intended to injure the
plaintiff", as the declaration alleges, he knew that the plaintiff had
made such a contract, and took advantage of its existence to injure
him in the manner described. He made use of the contract as an
instrument to accomplish his purpose.- As well may it be claimed
that w'here one beats another with a bludgeon, the injury is too re-



'Cf.: Lord Lindley in Quimi v. Leathavt. L. R. 1901. A. C. 495, p. 537,
"the intention to injure the plaintiff * * * disposes of any question of
remoteness of damage."



jgg MITCniL Z'. ALESTREE

mote because the damage was done by the bhidgeon. We see no
ground for the claim.

Wq advise the superior court that the declaration is sufficient.

In this opinion the other judges concurred; except Hinman,
C. J., who dissented. 3



CHAPTER II.

Acts W^rongful Because Probably Injurious to Others.



MITCHIL V. ALESTREE.
In the King's Bench, 28 Car. II (1676). Ventris, 295.

In an action upon the case brought against the defendant, for
that he did ride an horse into a place called Lincoln's Inn Fields (a
place much frequented by the King's subjects, and unapt for such
purpose), for the breaking and taming of him, and that the horse
was so unruly, that he broke from the defendant, and ran over the
plaintiff, and grievously hurt him, to his damage, etc.

Upon not guilty pleaded, and a verdict for the plaintiff, it was
moved by Simpson in arrest of judgment, that here is no cause of
action : for it appears by the declaration, that the mischief which
happened was against the defendant's will, and so damnum absque
injuria; and then not shewn what right the King's subjects had to
walk there ; and if a man digs a pit in a common into which one that
has no right to come there, falls in, no action lies in such case.

Curia contra, It w^as the defendant's fault, to bring a wnld
horse into such a place where mischief might probably be done, by
reason of the concourse of people. Lately, in this court, an action
was brought against a butcher, who had made an ox run from his
stall and gored the plaintiff; and this was alleged in the declaration
to be in default of penning of him.

Wylde said: If a man hath an unruly horse in his stable, and
leaves open the stable-door, whereby the horse goes forth and does
mischief, an action lies against the master.

TwiSDEN. If one hath kept a tame fox which gets loose and
grows wild, he that kept him before shall not answer for the dam-
age the fox doth after he lost him, and he hath resumed his wild
nature. Vide Hobart's Reports, 134. The case of Weaver and
Ward. Judgment for plaintiff. 2 Lev. 172.



^Accord: Gregory v. Brooks, 35 Conn. 437 (1868), one, who purporting
to act as superintendent of wharves orders a vessel lying at plaintiff's wharf
to remove therefrom is liable if, and only if, he does so with intent to injure
the plaintiff and deprive him of profit from the use of his dock; Hughes v.
Leonard, 43 N. J. L. 459 (1881), defendant loosened the shoes on the horse
of one of the customers of the plaintiff, a blacksmith, in order to injure his
trade reputation; -S"^ T. & L. C. R. R. v. Hunt, 55 Vt. 570 (1882), defendant,
with intent to delay plaintiff's train, illegally caused the arrest of its engineer.



y



HEAVi:X Z-. PENDER 1 89



Same case, sub nomine MICHELL v. ALLESTRY.

3 Keble, 650. '

Simson excepted in arrest of judgment, in Act. upon the Case for
brini^ing horses wild to tame in Uttle Lincohi-fields, being an open
pubhc i)lace where people are all the day passing and repassing, be-
cause it's not said to be any highway, nor said that the defendant
knew them to be wild, nor was there negligence in the coachman,
who was thrown out and hurt ; but by Saunders an action upon the
case well lay, as by Smith of Westminster, for not pinning an ox.
but setting a dog on him, whereby he ran into Pallas-yard and hurt
hmi ; so where a monkey escaped and did hurt, by default of the
owner; & per curiani, it's at peril of the owner to take strength
enough to order them, and the master is as liable as the servant if
he gave order for it, and the action is generally for bringing them
thither, which is intended personal, and judgment for the plaintifif.-



HEAVEX r. PENDER.
In the Queen's Bench Division, 1883. L. R. 11 Q. B. D. 503.

Brett, M. R. [afterwards Lord Esher]. The questions which we
have to solve in this case are — what is the proper definition of the
relation between two persons other than the relation established by
contract, or fraud, which imposes on the one of them a duty towards
the other to observe, with regard to the person or property of such
other, such ordinary care or skill as may be necessary to prevent
injury to his person or property. * * =!=

[After citing a number of relations out of which admittedly a
duty to take care arises at common law.]

It follows, as it seems to me, that there must be some larger



* Also reported in 2 Lev. 172.

* One of the earliest uses, to which the writ of trespass on the case was
put, was to give compensation for harm indirectly caused by conduct which
had it been directly injurious would have fallen within some form of the
writ of trespass vi et armis. See writ cited by Fitzherbert de Natura Brevium
(1547). Trespass sur le case, 92 F, "Wherefore in the water of Plim,
along which there is a common passage for ships and boats, he loosed piles
across the water, whereby a certain ship, with thirty quarters of malt of him
the said \V was sunk under water, and twenty quarters of malt of the price
of one hundred shillings perished" — see ibid. 93 H., a prior detained on busi-
ness journey by illegal distress of his palfrey, and ibid. 95 A., defendant
making gulph to the injury of plaintiff's adjacent gulph.

The following cases are cited in the margin of the report of this case in
Ventris : Weaver v. J]'ard. Hobart 134 (1616); Gilbert v. Stone — Style
72 (1647); Bessy v. OlUot and Lambert, T. Raym., 467, 1682;
Dickinson v. JVatson. T. Jones, 205 (1681'), and note that these are the
cases in which the originally absolute liability for all personal injuries di-
rectly resulting from defendant's voluntary action was modified so as to let
in the defense that the harm had happened notwithstanding the defendant's
exercise of everv possible precaution in the doing of an act in itself lav/ful.
See Stanley v. Pozcell. L. R. (iSqiV i Q. B. S6.



190 LE LIEVRE f. GOULD

proposition which involves and covers both sets of circumstances.
The logic of inductive reasoning requires that where two major
propositions lead to exactly similar minor premises there must be a
more and larger premise which embraces both of the major propo-
sitions. That, in the present consideration, is, as it seems to me, the
same proposition which will cover the similar legal liability inferred
in the cases of collision and carriage. The proposition which these
recognized cases suggest, and which is, therefore, to be deduced
from them, is that whenever one person is by circumstances placed in
such a position with regard to another that every one of ordinary
sense who did think would at once recognize that if he did not use
ordinary care and skill in his own conduct with regard to those
circumstances he would cause danger of injury to the person or
property of the other, a duty arises to use ordinary care and skill
to avoid such danger.



LE LIEVRE z'. GOULD.
In the Queen's Bench Division, 1893. L. R. (1893). i Q- B. 491.

Appeal by the plaintiffs against the refusal of a Divisional
Court (Wills and Collins, JJ.) to set aside the judgment of one of
the official referees in favor of the defendant.

Mortgagees of the interest of a builder under a building agree-
ment advanced money to him from time to time on the faith of
certificates given by a surveyor that certain specified stages in the
progress of the buildings had been reached. The surveyor was not
appointed by the mortgagees, and there was no contractual relation
between him and them. In consequence of the negligence of the
surveyor the certificates contained untrue statements as to the prog-
ress of the buildings, but there was no fraud on his part.^

Lord Esher, M.R.

Then it is said that, even if there was no contract between the
plaintiff Dennes and the defendant, nevertheless the defendant is
liable to the plaintiffs for having given certificates which contained
untrue statements ; for, it is said, the defendant owed a duty to the
plaintiffs to exercise care in giving the certificates, because he knew
that the plaintiffs would or might act upon them by advancing money
to Lovering. No doubt the defendant did give untrue certificates ;
it was negligent on his part to do so, and it may even be called gross
negligence. But can the plaintiffs rely upon negligence in the ab-
sense of fraud ? The question of liability for negligence cannot
arise at all until it is established that the man who has been neg-
ligent owed some duty to the person who seeks to make him liable
for his negligence. What duty is there when there is no relation
between the parties by contract? A man is entitled to be as negli-
gent as he pleases towards the whole world if he owes no dutv to
them. The case of Heaven v. Pender, 11 Q. B. D. 503. has no bear-
ing upon the present question. That case established that, under



*The facts are restated, and the opinion of Bowen, L. J., is omitted.



L1-: LiEVki-: v. golld 191

certain circumstances, one man may owe a fluty to another, even
though there is no contract between them. If one man is near to
another, or is near to the property of another, a duty hes upon him
not to do that which may cause a personal injury to that other, or
may injure his property. For instance, it a man is driving along a
road, it is his duty not to do that which may injure another person
whom he meets on the road, or to his horse or his carriage, in the
same way it is the duty of a man not to do that which will injure
•the house of another to which he is near. If a man is driving on
Salisbury Plain, and no other person is near him, he is at liberty to
drive as fast and as recklessly as he pleases. But if he sees another
carriage coming near to him, immediately a duty arises not to drive
in such a way as is likely to cause an injury to that other carriage.
So, too, if a man is driving along a street in a town, a similar duty
not to drive carelessly arises out of contiguity or neighborhood.
That is the effect of the decision in Heaven v. Pender, ii Q. B. D.
503, but it has no application to the present case. * * * A charge
of fraud is such a terrible thing to bring against a man that it can-
not be maintained in any Court unless it is shown that he had a
wicked mind. That is the effect of Derry v. Peek, 14 App. Cas.
337. What is meant by a wicked mind? If a man tells a wilful
falsehood, with the intention that it shall be acted upon by the
person to whom he tells it, his mind is plainly wicked, and he must
be said to be acting fraudulently. Again, a man must also be said
to have a fraudulent mind if he recklessly makes a statement in-
tending it to be acted upon, and not caring whether it be true. or
false. I do not hesitate to say that a man who thus acts must have
a wicked mind. But negligence, however great, does not of itself
constitute fraud. The official referee who tried this case and heard
the evidence came to the conclusion that the defendant, though he
had acted negligently, had not wilfully made any false statement,
or been guilty of any fraud. All that he had done was to give
untrue certificates negligently. Such negligence, in the absence of
contract with the plaintiffs, can give no right of action at law or in
equity. All the grounds urged on behalf of the plaintiffs fail, and
the appeal must be dismissed.^



^Accord: Bank v. Ward, 100 U. S. 195 (1879), purchase of property mis-
led by certificate of attorney employed by vendor to examine the title;
Houseman v. Girard Building Assn., 81 Pa. 256 (1876). intending lender on
mortgage misled by false certificate of searches; Gordon v. Livingston, 12
Mo. App. 267 (1882), false certificate given by grain inspector; Kahl v. Love
2,7 N. J. L. 5 (1874), false receipt given by collector of taxes; see also Moor,.
V. Lancaster, 212 Pa. 642 (igos), suit by purchaser of house built on errone-
ous grade line given by city official. In Fish v. Kelly, 17 C. B. N. S. 194
(1864), information in regard to a client's deeds was given to an outsider
by an attorney not employed by the client to investigate and report.



192 ANTHONY v. SLAID



ANTHONY v. SLAID.

Supreme Judicial Court of Massachusetts, 1846. 52 Mass. 290.

Shaw, C. J. The case stated in the plaintiff's declaration is
this : He was a contractor for the support of all the poor of the town
of Adams, at a hxed sum per annum, and undertook to support
them, in sickness and health, at his own risk: The defendant's wife
committed an assault and battery upon one of the town paupers, by-
means of which he was hurt, and the plaintiff was put to increased
expense for his cure and support.

The court of common pleas decided that this action, if the facts
alleged in the declaration were proved, could not be maintained;
and exceptions were alleged by the plaintiff. We are of the opinion
that this decision was right. It is not by means of any natural
or legal relation between the plaintiff and the party injured, that
the plaintiff sustains any loss by the act of the defendant's wife, but
by means of the special contract by which he had undertaken to
support the town paupers. The damage is too remote and indirect.
If such a principle be admitted, we do not see why the consequence
would not follow, as stated in the argument for the defendants, that
in a case where an assault is committed, -dr other injury is done to
the person or property of a town pauper, or of an indigent person
who becomes a pauper, the town might maintain an action, with a
per quod, for damages. That there is no precedent for such an
action, where there must have been many occasions for bringing it,
if maintainable, is a strong argument against it. Lamb v. Stone,
II Pick. 527. Exceptions overruled.'^



^Accord: Taylor v. Nej-i, i Esp. 386 (1795), opera singer beaten and
prevented from appearing at plaintiff's theatre; Ins. Co. v. Bosher, 39 Me.
253 (1855), a building insured by plaintiff wilfully burned by defendant;
Conn. Mutual Life Ins. Co. v. R. R., 25 Conn. 265 (1856), policy holder killed
by defendant's negligence. See Storrs, J., p. 275; his. Co. v. Bramc, 95 U. S.
754 (1877), same facts; Dale v. Grant, 34 N. J. L. 142 (1869), defendant
wrongfully stopped the motive power of a mill to whose whole output plain-
tiff was by contract entitled; Cattle v. Stockton Water Works Co., L. R. 10
Q. B. 453 (1875) ; La Societe de Remorguage de H el ice v. Bennetts, i^. iv.
1911, 1 K. B. 243, the defendant by whose negligence a boat towed by the
plaintiff's tug was destroyed held not liable for the latter's loss on his partly
performed contract of towage; Tarleton v. McGawley, 1 Peake N. P. 270
(1794), per Lord Kenyon, p. 273; aliter where there exists "some natural or
legal relation," such as father and son, husband and wife or master and serv-
ant, by virtue of which the plaintiff is entitled to the services of the person in-
jured; Jones V. Brown, 1 Esp. 217 (1795); Cf. Taylor v. Neri, supra. See,
however, Bowen, L. J., Mogul S. S. Co. v. McGregor, L. R. 23, Q. B. D. 593
(1889), p. 613. "Now, intentionally to do that which is calculated in the or-
dinary course of events to damage and which does, in fact, damage another in
that other person's property, or trade is actionable, if done without just cause
and excuse," and Holmes, J., "when a responsible agent seeks to escape from
liability for an act, which he had notice was likely to cause damage to another
and which has caused such damage in fact, he must show a justification," and
cf. 20 Harv. L. R. 262, n. 3 ; see also Lord Lumley, Quinn v. Leatham, L. R.
1901, A. C. 495, top of p. 535.

Compare': Martin B. in Francis v. CockreU. L. R. 5, Q. B. 50T (1870).
"The law of England looks at proximate liabilities as far as is possible, and
endeavors to confine liabilities to the persons immediately concerned (p. 510).



PALMER V. NORTHERN PACIFIC RAILROAD CO. I93



PALMER V. NORTHERN PACIFIC RAILROAD CO.
Supreme Court of Minnesota, 1887. 37 Minnesota, 223.

GiLFiLLAN, C. J. Action for running upon and killing plain-
tiff's horse. The horse was at large in a public highway, grazing
near the crossing of defendant's road, when, a train of cars coming
along at its usual speed, the horse ran upon the track, in front of
the train, and the train ran upon and killed it. It does not appear
that the electors of the town had determined where cattle, horses,
etc., should be permitted to go at large. The horse was therefore
wrongfully in the highway. It is doubtful that the evidence as to
the defendant's negligence, and also as to contributory negligence on
the part of plaintiff, was such as to justify submitting the case to
the jury. Conceding, however, that it was, still there must be a new
trial for refusal of the Court to instruct the jury as requested by de-
fendant.

There were several requests on its behalf, presenting, in various
forms, practically the same proposition, which the Court refused to
give. We need specify only two of them, as they express the gist of
all : "If the jury believe from the evidence that the plaintiff's horse,
at the time of the injury complained of, was running at large, it is
instructed that the verdict must be for defendant, unless it further
believes that, after the discovery of the peril of the horse, the de-
fendant's servants v^ere guilty of negligence," and that if the horse
was running at large, plaintiff, in order to recover, must prove two
facts, viz.: "That, prior to actually striking the horse, the defend-
ant's servants discovered its peril;" and "that, after the discovery of
the horse's peril, defendant's servants failed to do something which
they ought to have done to avoid striking it, and which, if done,
would have been effectual to prevent the collision."

These propositions, or, rather, this proposition twice stated, is
in exact accord wnth what was decided by this Court in Locke v.
First Div., etc., R. Co., 15 Minn. 283 (350,) and reiterated in JVither-
ell V. Mihvaiikce & St. Paul Ry. Co., 24 Minn. 410. It is true those
were cases w^here the animals were wrongfully upon the lands of the
railroad company, while in this it was wrongfully upon the highway,
at the place where the trains had a right to cross — there through the
fault of the plaintiff, and not of defendant. This difference makes
no difference in the principle. In either case those in charge of the
train were not bound to presume that the animal would be w^here it
was. They "had a right to presume that the plaintiff would keep
her at home, where alone she belonged ; consequently they owed no
duty to plaintiff to look ahead, and see where the animal w^as."
Locke V. First Pk'., etc.. R. Co., supra. Their dutv to persons or
animals rightfully on the highw^ay would have required them to be
on the lookout to ascertain if there was any chance of injury to such
persons or animals ; but with that duty, and its extent and its ob-
servance, the plaintiff", whose animal, through his own fault, was



194 V A UGH AN 1\ MENLOVE

wrongfully there, had no concern. Defendant is [in] no way answer-
able to plaintitT for any neglect in its duty towards others.^

Without any duty to anticipate that the horse might be in dan-
ger, or to exercise care to ascertain if it was in danger, the duty of
those in charge of the train of cars in respect to the horse arose from
the time they discovered it was in danger.

Order reversed.



VAUGHAN V. MENLOVE.

Court of Common Pleas, 1837. 3 Bingham's New Cases, 468.

At the trial it appeared that the rick in question had been made
bv the Defendant near the boundary of his own premises ; that the
hay was in such a state when put together, as to give rise to dis-
cussions on the probability of fire: that though there were con-
flicting opinions on the subject, yet during a period of five weeks,
the Defendant was repeatedly warned of his peril; that his stock
was insured; and that upon one occasion, being advised to take
the rick down to avoid all danger, he said ''he would chance it."
He made an aperture or chimney through the rick ; but in spite, or
perhaps in consequence of this precaution, the rick at length burst
into flames from the spontaneous heating of its materials ; the flames
communicated to the Defendant's barn and stables, and thence to
the plaintiff's cottages, wdiich w^ere entirely destroyed.

Pattcson J., before whom the cause was tried, told the jury that
the question for them to consider, was, whether the fire had been
occasioned by gross negligence on the part of the Defendant; add-
ing, that he was bound to proceed with such reasonable caution as a
prudent man would have exercised under such circumstances.

A verdict having been found for the Plaintifif, a rule nisi for
a new trial was obtained, on the ground that the jury should have
been directed to consider, not, whether the Defendant had been
guilty of gross negligence with reference to the standard of ordi-
nary'prudence, a standard too uncertain to afford any criterion ; but
whether he had acted bona fide to the best of his judgment; if he
had, he ought not to be responsible for the misfortune of not pos-
sessing the highest order of intelligence. The action under such
circumstances, was of the first impression.

^Accord: Leighton v. Wheeler, 106 Maine 450 (1911). "Even if the de-
fendant owes a duty to some one else, but does not owe it to the person
injured, no action w'ill he. The duty must be due the person injured. These
principles are elementary and are equally applicable whether the duty is
imposed by positive statute" (see cases collected in note 4 to Bott v. Pratt,
post) "or is founded on general common-law principles;" Ivlitchell, C. J., in
Akers v. Chicago, etc., R. Co., 58 Minn. 540 (1894). p. 544.

"The duty must be one owed by the defendants to the plaintiffs m re-
spect to the very matter or act charged as negligence" ; Parsons. C. J.. Pitts-
field Mfg. Co. v. Pittsfield Shoe Co., 71 N. H. 522 (1902), p. 531; cf. Gray
& Bell V. Scott, 66 Pa. St. 345 (1870), and cases cited in Note 1 to Bott v.
Pratt, post.

So one coming upon land for his own pleasure or convenience cannot
complain of a condition therein clearlv wrongful as to other visitors, who
come thereon for purposes in which the occrpier has an interest. Converse
V Walker. 30 Hnn, ^(^ (N. Y. 1883 V niairtiff seekinsr shelter from storm
in hotel porch; Thiele v. McManus. 3 Tnd. App. 132 (t8qt). plaintiff not a



VAUGHAN v. MENLOVE 1 95

TiNDAL C. J.^ I agree that this is a case primac impressionis ;
but I feel no dilficulty in applying to it the principles of law as laid
down in other cases of a similar kind. Undoubtedly this is not a
case of contract, such as a bailment or the like where the bailee is
responsible in consequence of the remuneration he is to receive :
but there is a rule of law which sajsj'ou must so enjoy your own
property as not to injure that of another; and according to that rule
the Defendant is liable for tlie consequence of his own neglect : and
though the Defendant did not himself light the fire, yet mediately,
he is as much the cause of it as if he had himself put a candle to
the rick; for it is well known that hay will ferment and take fire if
it be not carefully stacked. It has been decided that if an occupier