Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

. (page 31 of 124)
Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 31 of 124)
Font size
QR-code for this ebook

trespassory and unauthorized is also inadmissible, as the cases

The circumstances of alleged negligence directly causing the
misfortune are these: the gun was left at full cock, beside and in
the view of a footpath where it could be seen by anyone using the
path. It was in an inviting position to any person, particularly a
young person, who noticed it ; the day and hour would tend to con-
vey that the gun was unloaded. Defendant's son, of fifteen years of
age, took it up in that mistaken belief, and tricking with it caused
tlie injury. The boy was not of tender years, but his age was such
(as the decisions on the Employers' Liability Acts show, c. g.
Crocker v. Banks, 4 Times L. R. 324), as to make it desirable
not to place dangerous articles, such as loaded firearms, in his
way, without caution or warning. Boys of fifteen are just as
mischievous and likely to play with guns as children of ten
or twelve. In Williams Case, 10 Times L. R. 41, Lord
Esher, after assimilating the duty of a schoolmaster to that of
a father, observes: — "He was bound to take notice of the or-
dinary nature of young boys, their tendency to do mischievous acts,
and their propensity to meddle with anything that came in their
way." The same remark applies, according to my experience, to
young persons no longer in statu pupillari, at least in the case of
firearms. If the defendant had left this gun, as it was, on the high
road, or entrusted it to his son without warning, he would have
been, I have no doubt, responsible. I think also if he knew that


his son would come home by the path at that hour, and left it
■alluringly in his way, on full cock, he might also have been made
answerable for actionable negligence.

In one point of view, no doubt, the occurrence was an acci-
dent. It would not have happened if the plaintiff had not been on
the road in company with young Creed, or if the boy had gone home
another way, or had not seen the gun, or had not been seized with
the sudden desire to play with it; or if the defendant had dis-
charged the gun at a rabbit, or if he had not forgotten all about
the gun in the distraction of showing the field of potatoes to his
neighbours, or if he had not taken up his newspaper to read. The
question, however, is whether the circumstances were such as ought
to have brought to the mind of a prudent person the knowledge that
the gun was left in a dangerous place and condition where it might
be meddled with by some one like his son, in ignorance that the
gun was loaded. There is no question as to the principle. The
difficulty is caused by the looseness and want of particularity of
the evidence. My opinion has fluctuated as to whether the circum-
stances were such as to justify the inference that young Creed's
negligent use of the gun was such a danger as defendant, who did
not foresee it, ought to have foreseen, so as to connect the injury
as a direct and natural consequence with defendant's negligence.
The case is near the border line. With some doubt. I think that
the evidence justifies the inference of direct causal relation. If so,
it would appear that the understanding at the trial was that the ver-
dict should be entered for the plaintiff. The defendant was not
called to extenuate or repel any adverse inference, and his conduct
is left without any attempted explanation why he could not have
apprehended danger.

Palles, C. B. The possession of a loaded gun imposes_uj)on^
the person w^ho is in possession of it an obligation to use a much ~
greater amount of care than would the possession of the same gam
were it unloaded. Where there is any danger to human life, as
there nearly always is in the unguarded use of loaded weapons, it is
impossible to exaggerate the amount of care thus imposed. Fur-
ther, I am of opinion that a prudent person recognizes the necessity
of this care, and regulates his conduct accordingl}-.

Now, the amount of care usually exercised by a person depends,
not upon the existing material circumstances, but upon such only
of those circumstajices as are actually present to his mind. In my
opinion, a person who, knowing a gun to be loaded, gives it into
the possession of another without telling him that it is loaded, is
guilty of a want of due care, because, although a prudent person
ought to treat a weapon which he does not know to be unloaded'
as if it were in fact loaded, it appears to me impossible to sav that
the actual knowledge that it is loaded might not have, and indeed
usually has, an eflfect upon his conduct different from that which
the absence of that knowledge whether it was or was not loaded
would have had. We must take mankind as we meet them. One


-has^io right-S0 taj:£gulatejiis_cgnduct that injury may result from
Jtjo others, unless others act with an unusual amount of caution.

I am therefore of the opinion that the verdict should be entereTt
for the plaintift for the £50 damages assessed at the trial, and that
judgment should be entered thereon, with costs.

The defendant appealed to the Court of Appeal.

Holmes, L. J.- In most, if not in all, actions to recover dam-
ages for personal injuries caused by the negligence of the defend-
ant, the latter is entitled to have findings of the jury — (i) as to
whether he was guilty of any negligence; and (2), if so, as to
whether the injuries were caused by such negligence. These ques-
tions are not always put in the same form of words. The Judge
in the exercise of his discretion adapts them to the circumstances
of the case, and uses the language best suited to direct attention to
the material points in issue. In this case they would probably have
taken some such shape as this — Was the defendant guilty of negli-
gence in leaving his loaded gun at the place and in the position
described in the evidence? If so, ought he to have contemplated
that, as a result of his negligence, some person might take possession
of the gun and use it so negligently as to cause injury to a third
person in the neighbourhood? Were the plaintiff's injuries caused
by such negligent use of the gun by Daniel Creed? * * *

Returning to the questions I have formulated, I have no doubt
that_LLwas _£vid€«C€-of n«g-Iigenc€-4o4earve-44i€-g4uiJ.aad£d_aiiil_on
full jiQck-beside the pat hway leading to defendant's residence, by '
which jpjeople went to and came from the hou se. It might have
been discharged ^By^^arraccicTental touch or push from one of those
persons, and serious injury might have resulted to him or some
one else. Therefore the first question could not have been with-
drawn from the jury. The second question introduces the element
of a third party getting possession of the gun. There is no evi-
dence of how the path was used, but the jury were at liberty to
infer that it was used to some extent; and their knowledge of the
world would tell them that a gun casually laid aside has a great
fascination for some people, who seem to have a natural impulse
to handle and examine it, and who often do so in so careless and
imskilful a way as that it is discharged without intention on their
part. I do not attach much importance to the age of the defend-
ant's son. He was old enough to know that it was dangerous to
handle the gun on full cock, which had evidently been placed where
he found it for some temporary purpose by a person who had been
using it ; and in my own reading and experience negligence in
connexion with firearms is as common in the case of men as of
boys. Quite irrespective of the age of the persons who might use the
path, I think that there was evidence from which the jury were at
liberty to find that the defendant, when placing the gun against the
fence, ought to have contemplated that it might fall into negligent

* "■"' The concurring opinions of Fitz Gibbons and Walker, L. J. X,. afe



hands. Tlie third issue I have suggested — whether the plaintiff's
nijuries were caused by Daniel Creed's negligence — is, in my opinion,
attended with greater difficulty than the others. For some time
I was unable to account ior the accident consistently with the evi-
dence except as a consequence of the boy directing the gun towards
his comrades and wilfully discharging it. If he did not actually
know that it was loaded, it is difficult to believe that he did not
suspect it; and although I am sure he had no intention of hitting
the boys, I fear his object was to frighten them. Now I hold that
in a case of this kind there is a marked distinction between a negli-
gent act and a wilful act. A man who negligently lays aside a
loaded gun ought to contemplate that it may be taken up by a per-
son who will handle or use it negligently. But I think it would not
be within reasonable contemplation that the finder of it would wil-
fully discharge it at another. T have, however, satisfied myself on
further consideration that I am not called on to decide this question
in the present case, for I am now of opinion that the jury might have
inferred from the evidence that the boy desired merely to show the
gun to his comrades, and that while doing so it was accidentally dis-
charged. I know^ not whether the jury would have taken this view
or not; but as there is some evidence to support it, I am bound to
assume that it would. For those reasons I concur in the judgment
of the Court. 3

'Accord: Dixon v. Bell. 5 M. & S. 198; i Starkie 287 (1816), gun, left
loaded, fired in play by mulatto girl of thirteen, sent to fetch it; Williams v.
Early, 10 Times, L. R. 41 (1903). bottle of phosphorus kept in conservatory
by a schoolmaster exploded by reason of the meddling of a pupil and injured
the plaintiff, another pupil; cf. Swanson v. Crandall, 2 Pa. S. C. 85 (i8g6),
loaded revolver kept in unlocked bureau drawer removed and fired by de-
fendant's five-year-old child.

Dangerous articles furnished to be dealt zvith by others zvithout notice
of their true character: Farrant v. Barnes, 11 C. B. N. S. 553 (1861), porter
injured in handling imlabeled carboy of vitriol ; B. &■ A. R. R. v. SJianlcv,
107 Mass. 568 (1871), explosives and detonators shipped by difTcrcnt con-
signors, v.-ithout notice of their character, on same car; cf. Davidson v.
Nichols, 93 Mass. 514 (1865). Articles placed zvithin reach of those zdio by
reason of youth or other knozvn cause, are unable to appreciate their danger-
ous nature, though obvious to older or more intelligent persons: Carter v.
Tozvne, 98 Mass. 567 (1868): Binford v. Johnson, 82 Ind. 426 (1882'), ex-
plosives sold to children; Akin v. Broadley Co., 92 Pac. 903 (Wash., 1907),
dynamite caps thrown out on vacant lot exploded by finder, a small boy. by
means of electric battery; Makins v. Piggott. 29 Can. S. C. 188 (1898"), and
Harriman v. R. R., 45 Ohio 11 (1887). similar facts; Harrold v. Watney. L. R.
1898, 2 Q. B. 320, flimsy fence on highway falling with small boy, trying to
climb it to reach his comrades, at play in field within; Jezvson v. Gatti, 2 T.
L. R. 441 (1886), cliild leaning on temporary fence to watch work going on
within ; see Englehart v. Farrant. L. R. 1897, T Q. B. 240. cart left in charge
of small boy, who in disobedience to positive orders, drove it and ran into
plaintiff's property; but .see Mann v. Ward. 8 T. L. R. 699 (1901") and Wil-
liams v. Koehler Co., 41 N. Y. App. Div. 426 (1899").

Acts intended or reasonably calculated to cause third persons to trcst^ass
nn plaintiff's property: Scott's Trustees v. }foss. 17 Rettie 32 (Scot. t88o\
crowd collecting outside defendant's premises to witness balloon ascension
thereon; Guille v. Szcan, 19 John. 381 (N. Y., 1822"), crowd invade olaintifT's
land to assist a balloonist to descend; Fairbanks v. Kerr, 70 Pa. 86 C1871),



214 ^ LYXCH t'. KNIGHT



Harms Not Regarded as Legal Injury.

In the House of Lords, 1861. 9 H. L. C, S77-

Mrs. Knight brought an action in the Court of Queen's Bench
in Ireland (joining her husband as plaintiff for conformity) to re-
cover damages for slanderous words spoken by Lynch, her step-
brother, to her husband imputing to her that before her marriage
she had been all but seduced by Dr. Casserly, in consequence of
which her husband had forced her to leave his house, whereby she
lost the consortium of her husband. A verdict having been found
for the plaintiff upon issues raised by defendant's denial of the
uttering, etc., the Court of Queen's Bench overruled the defendant's
demurrer to the declaration and entered judgment for the plaintiff
on the verdict, which the Exchequer Chamber affirmed. The present
proceeding in error was then brought.^

Lord Wensleydale :

The questions in the case are two: — ist. Whether a wife can
maintain an action for the loss of the consortium of the husband by
a wrongful act of the Defendant (joining, of course, her husband
for conformity) ? and 2d. Whether the loss of that consortium is
sufficiently connected with and shown to be the, consequence of the
Defendant's wrongful act in this case, so as to be actionable?

There is a considerable doubt upon both these questions, but
particularly on the first. I have made up my mind that no such
action will lie.

To test this, suppose an action brought by the wife for false
imprisonment of the husband by the Defendant, for a period of
time, by which she lost the consortium of the husband during that
time. Would such action lie? If it would not, a fortiori, no action
could be maintained for slander attended with the special damage

property injured by crowd collected by defendant's street oratory; but cf.
Scholes V. Ry., 21 L. T. R. n. s. 835 (1870), crowd attracted by railway wreck-
age. . ....

As to duty to provide against that occasional negligence which is one
of the ordinary incidents of human life and so ought to be anticipated
(Gibson, J., Murphy v. Ry., Ir. R. 1897, 2 K. B., p. 312, cf. Pallis, C. B., Sxdli-
van V. Creed, supra), see McCauley v. Norcross, 155 Mass. 584 (1892) ; Bever-
idge v. Kinnear and Co., 11 Rettie 387 (Sessions case, Scots., 1883), the de-
fenders occupied the second story of a warehouse leased in flats, their door
bein? ofif its hinges was struck by a bale of goods lowered from the flat above
and fell upon the pursuer, killing him. Held: That "the door must be suf-
ficiently strong not only to stand if left alone, but to meet the ordinary con-
tingencies of danger arising from the purposes for which the building is
used". Lord McLaren, p. 390 ; Smith v. R. R., 46 N. J. L. 7 fi884), railway
appliance so left that the careless acts of trespassers might make them unsafe.

* The facts are restated and the opinions of Lord Brougham, and Lord
Cranworth are omitted.


of the loss of the husband's society, caused immediately by his own

It is certainly an objection of the greatest weight to such an
action that there is no precedent or authority of any kind in favor
of it.-

It is contended that it may be supported by analogy to the
action which the husband may unquestionably maintain for an in-
jury to the wife per quod consortium aiiiisit.

I agree with Baron fitcgVrald, that the benefit which the hus-
band has in the consortiujii of the wife, is of a different character
from that which the wife has in the co)isortiu>ii of the husband. The
relation of the husband to the wife is in most respects entirely dis-
similar from that of the master to the servant, yet in one respect it
has a similar character. Tlie assistance of the wife in the conduct
of the household of the husband, and in the education of his chil-
dren, resembles the service of a hired domestic, tutor or governess ;
is of material value, capable of being estimated in money; and the
loss of it may form the proper subject of an action, the amount of
compensation varying with the position in society of the parties.
This property is wanting in none. It is to the protection of such
material interests that the law chiefly attends.

Mental pain or anxiety the law cannot value, and does not
pretend to redress, when the unlawful act complained of causes that
alone ;^ though where a material damage occurs, and is connected
with it, it is impossible a jury, in estimating it, should altogether
overlook the feelings of the party interested."* For instance, where

'But cf. Willcs, J., in Winsmore v. Grcenbank, Willes, 577 (1745), and
Holt, C. J., in Ashhy v. JVhitc, ante, p. 3.

^Accord: JVyman v. Leavitt, 71 Me. 227 (1880); Canning v. IVilliams-
town, I Cush. 451 (1848), "Pleasant emotions are not among the rights which
the law safeguards," Goode, J., 91, Mo. App., p. 9. The very material view
point of the common law as to what constitutes legal damage is shown also in
Bland v. Moscley, Yelv. 216 (1585), cited in Aldred's case, 5 Co. 57 (1611).
"P'or a prospect, which is a matter only of delight, and not of necessity, no
action lies for stopping thereof, and yet it is a great commendation of a house
if it has a long and large prospect." Wray, C. J., p. 58. As to wife's right in
consortiiiin of her husband, see Ashhy v. White, ante, p. 179, n. 5.

* When a right of action be shown by proof of an act wrongful and ac-
tionable irrespective of the actual harm it causes — invasions of so-called abso-
lute rights — or by proof, when damage is the gist of llic action, of some
tangible harm sustained — if the act in itself or by reason of the manner in
which it is done is reasonably calculated to cause mental distress or loss of
personal or family honor, the jury may give damages therefor. These ele-
ments of damage have been happily termed "parasitic"; Street, Foundations
of Legal Liability, Vol. L p. 461.

"In truth, the Courts which deny relief for injuries following fright are
so impressed with the injustice of the rule that they seize on any pretext to al-
low a recovery — even the most frivolous legal wrong and, however slight the
immediate harm may be." Goode. J., Fliekey v. Welch. 91 Mo. App. 4 (iqoi;.
So it has been held that a woman has a right to the quiet and peaceful en-
joyment of her home though owned by her husband, from the invasion of
which trespass lies; letting in proof of her fright and its effect in aggravation
of the damages, JJ'atson v. Dilts. 116 Iowa. 249 ('1902') : tlmt trespass lir'S fo-
indignities to a husband's corpse. Larson v. Chase. 47 Minn. 307 (1891") ;
and for the intrusion of a house owner into his servant's room, Nezcell v.


a daughter is seduced, however deeply the feehngs of the parent
may be affected by the wicked act of the seducer, the law gives no
redress, unless the daughter is also a servant, the loss of whose
service is a material damage which a jury has to estimate; when
juries estimate that, they usually cannot avoid considering the in-
jured honor and wounded feelings of the parent.^

The loss of such service of the wife, the husband, who alone has
all the property of the married parties, may repair by hiring another
servant; but the wife sustains only flie loss of the comfort of her
husband's society and affectionate attention, which the law cannot
estimate or remedy. She does not lose her maintenance, which he
is bound still to supply ; and it cannot be presumed that the wrongful
act complained of puts an end to the means of that support without
an averment to that effect.

And if there were such an averment, the recovery of a com-
pensation must be by joining the husband in the suit, who himself
must receive the money, which would not advance the wife's remedy.
The wife is, in fact, without redress by any form of action for an
injury to her pecuniary interests.

That the loss of the comfort of the society and attention of
friends by a wrongful act does not support an action for slander is
fully settled by the case of Moore v. Meagher, i Taunt. 39 ; and the
wife can have no right of action for a loss of the same character,

IVhitchcr, 53 Vt. 589 (1880). So on the other hand it has been held that ac-
tual injury is shown by proof that plaintiff to avoid a projection from a car
was forced to throw herself on the station platform, Buchanan v. R. R., 52
N. J. L. 265 (1890) ; that a man had been forced to jump from a low wagon
and so sustain a physical shock, Berard v. R. R., 177 Mass. 179 (1900) ; that
the wagon in which plaintiff was seated was carried some distance by collid-
ing car; Trac. Co. v. Lambertson, 59 N. J. L. 297 (1896). See also Diimee v.
Regal, 65 Leg. Int. 607 (1908); Hess v. Pipe Line, 221 Pa. 67 (1908), and
Cameron v. Tel. Co., 182 Mass. 211 (1902).

Injury to family honor and feelings is only to be considered in cases of
seduction' and in cases where the defendant's conduct is consciously directed
against the plaintiff in his family relations, Magee v. Holland, 27 N. J. L. 86
(1858), and not where it, whether intentional or negligent, is an act which,
while directed against a member of the plaintiff's family, injures the latter by
depriving him of the victim's services to which he is legally entitled, Cozvden
V. Wright, 24 Wendell (N. Y.) 429 (1840); Pa. R. R. v. Kelly, 31 Pa. 372

° While in theory the parents' right of action for the seduction of a
daughter is based on loss of service— it has long been held that the relation of
master and servant could be proved by showing the slightest act of service,
such as pouring tea, Abbott, C. J., Carr v. Clarke, 2 Chitty 260 (1818), and
in Maunder v. Venn, Moody & Malkin 323 (1829), Littledalc, J., held
that "proof of any acts of service was unnecessary. It is sufficient that she
was living with her father, forming part of his family and subject to^his
control and command", and in the United States it is generally held that it is
enough that, the girl being a minor, her father has a right to her services,
Gray v. Durland, 51 N. Y. 424 C1873). But while the daughter need not be
shown to have ever tendered any actual services, the plaintiff must still show
that by reason of defendant's wrong, she has been incapacitated frorn serving.
Eager v. Grimzvood. i Ex. 61 (1847') ; and illness caused by chagrin at her
desertion by her seducer is too remote, Boyle v. Brandon. 13 M. & W. 738
(1844) ; but see Abrahams v. Kidney, 104, Mass. 222 (1870).


though of a much higher degree, for the loss of that of her husband.
To the same effect is the case of Medhurst v. Balams, cited in i
Siderf. 397.

For these reasons, I tliink the wife has no remedy in the sujj-
posed case of the wrongful imprisonment of the husband; and by
parity of reasoning, she can have none for being deprived of the
society of her husband by the slander of another upon her char-
acter, causing him to desert her, especially when we consider that
the damage in this case is immediately caused by the husband's own
voluntary act.

This view of the case makes it unnecessary to consider whether
the slander of the Defendant has been proved to be the cause of
the loss — the desertion by the husband — so as to make the words
actionable, they not being so unless they have caused a special dam-
age. Upon this question I am much influenced by the able reason-
ing of j\Ir. Justice Christian. I strongly incline to agree with him,
that to make the words actionable, by reason of special damage, the
consequence must be such as, taking human nature as it is, wath its
infirmities, and having regard to the relationship of the parties con-
cerned, might fairly and reasonably have been anticipated and feared
would follow from the speaking the words, not what would reason-
ably follow, or we might think ought to follow.

I agree with the learned Judges, that the husband was not
justified in sending his wife away. I think he is to blame; but I
think that such deliberate and continued accusations, of such a char-
acter, coming from such a quarter, might reasonably be expected so
to operate, and to produce the result which they did.*'

In the case of Vicars v. Wilcocks, 8 East, i. I must say that
the rules laid down by Lord EUcnhorou^h are too restricted. That
which I have taken from Mr. Justice Christian seems to me, I own,
correct. I cannot agree that the special damage must be the natural
and legal consequence of the words, if true. Lord Elloiborough
puts as an absurd case, that a Plaintiff could recover damages for
being thrown into a horsepond, as a consequence of words spoken ;
but I own I can conceive that when the public mind was greatly
excited on the subject of some base and disgraceful crime, an accu-

Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 31 of 124)