J. G. (Jabez Gridley) Sutherland.

A treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 2) online

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dictiveness on the part of the wrong-doer ; ° whenever there is
a wilful, malicious or reckless tort to person or property." In
a Kentucky case the court say: "In actions of trespass juries
are authorized to give what is denominated smart money. If
trespassers were bound to pay in damages no more than the
exact value of the property forcibly taken and converted by
them there would be no motive created by the operation of the
law to induce them to desist and abstain from invading the
rights of others. To furnish such a motive smart money is
allowed." " In an Illinois case the court say : "The experience
of past ages demonstrates a tendency on the part of many in
every community to take the law into their own hands and to
oppress, insult and abuse others, even in pursuing their rights.
And inasmuch as such conduct is not indictable the law has,
for the repose of society, authorized the jury to give exemplary
damages where a trespass is wanton, wilful or malicious, or
where it is accompanied with such acts of indignity as to show
a reckless disregard of the rights of others, as a punishment for
the wrong, and to deter others from the perpetration of such
acts." " A later case states the rule thus : Exemplary dam-
to the injured person, but likewise 290; Carmody v. St. Louis T. Co.,
as a punishment to the guilty, to 122 Mo. App. 338; Bright v. Quinn,
deter from any such proceeding for 20 Hawaii, 504; Illinois, etc. R. Co.
the future, and as a proof of the v. Cobb, 68 111. 53; Cutler v. Smith,
detestation of the jury to the ac- 57 id. 252; Conners v. Walsh, 131
tion itself.'" Wilkes v. Wood, N. Y. 500; Wagner v. Gibbs, 80
LoflFt 1, 18, 19, 19 How. St. Trials, Miss. 53; Turnbow v. Wimberly,
1153, 1167. 106 La. 259; Cosgriff v. Miller, 10

Where an action is brought under W'yo. 190, quoting the text.
a statute silent as to exemplary ii Tyson v. Ewing, 3 J. J. Marsh,

damages none can be allowed. igO; Louisville & N. R. Co. v. Roth,
Kleybolte v. Buffon, 89 Ohio St. 61. 130 Ky. 759; Doerhoefer v. Shew-

9Nagle V. :Mattison, 34 Pa. 48. maker, 123 Ky. 646.

The state of the wrongdoer's ^ ^^^^^^.^ providing for the re-

mind, not the force used, determines ^^^.^^.^ ^^ ^jj damages sustained in-
the liability for exemplary damages. ^j^^^^; punitive dama-es. .Jones v.
Baxter v. :Magill, 127 Mo. App. 392. McCreery L. & I. Co., 82 S. C. 456.

10 Vansant v. Kowalewski, —

Del. — , 90 Atl. 421 ; Groh v. South,
— Md. — , 89 Atl. 321; Schmitt v

12 Cutler V. Smith, 57 111. 252;
Meighan v. Birmingham T. Co., 165

Kurrus, 234 Til. 578; Thomas v. ^la. 591; Sommerfield v. St. Louis
Kerr, 137 Til. App. 479; Fidelity & T. Co., 108 Mo. App. 718, citing this
Cas. Co. V. Gibson, 135 111. App. section.



[§ 391

ages are given as a punishment where torts are committed with
fraud, actual malice, or deliberate violence or oppression, or
where the defendant acts wilfully, or with such gross negli-
gence as to indicate a wanton disregard of the rights of others."
In New Hampshire there has been considerable fluctuation of
decision ; and that state may now be classed with those in which
exemplary damages, lUtra compensation, are denied." But in

13 De Celles v. Casey, 48 Mont.
568; Hemsteger v. Nelson, 181 111.
App. 377; Forrester v. Southern
Pac. Co., 36 Xev. 247, 48 L.R.A.
(N.S.) 1, citing this section; Mis-
sissippi Cent. R. Co. v. McClendon,
— Miss. — , 64 So. 460 (denying
damages in the absence of a show-
ing of acts evincing "malice, fraud,
oppression or wilful wrong") ; Con-
solidated C. Co. V. Haenni, 146 111.
614, 14 Am. Neg. Cas. 310; Chicago
Con. T. Co. V. Mahoney, 230 111.
562; Webb v. Atlantic C. L. R. Co.,
r6 S. C. 193, 9 L.R.A.(N.S.) 1218;
Birmingham R., L. & P. Co. v. Mur-
phy, 2 Ala. App. 588; Birmingham
W. Co. V. Keiley, 2 Ala. App. 629.

14 In Fay v. Parker, 53 N. H. 342,
16 Am. Rep. 270, a very able,
elaborate and exhaustive opinion
was delivered by Foster, J., in which
the court seemed to be unanimous,
against exemplary damages, espe-
cially where the act complained of
is a criminal offense. While ad-
mitting there are many cases sanc-
tioning the recovery of such dam-
ages, he contends, with great force
of reasoning, not easy to resist on

1. That many of the cases cited
in support of exemplary damages,
and many loose expressions which
are to be found in judicial opinions,
when closely scrutinized only favor
a liberal allowance of compensation
in conaideration of aggravations.

2. That where there are such

facts as have generally been deemed
to warrant the recovery of vindic-
tive damages, they should be con-
sidered only as they enhance the
damages which the injured party
is entitled to receive; that nothing
should be allowed for punishment
as a substantive element or pur-

3. That to permit a plaintiff to
recover for his actual damages, in-
cluding, as they should, his pecun-
iary loss, and in cases of personal
injury, or other torts aggravated
by personal abuse or insult, for
pain, bodily and mental; and, in
addition, a sum by way of punish-
ment, is to subject the defendant
to the injustice of a double re-
covery; for he is thus compelled to
pay more than the plaintiff is en-
titled to receive.

4. If the defendant is subject to
be punished criminally for the same
act, then the recovery in a civil
action of vindictive or punitory
damages exposes the wrong-doer to
double punishment, besides making
full compensation for every element
of injury to the injured party.

5. That such double recovery of
damages, and such double punish-
ment, are an infraction of the max-
ims of the common law against be-
ing twice vexed for the same cause
or twice punished for the same of-
fense; and an infraction of the
guaranties found in nearly all

§ 391]



several cases their allowance had been affirmed. The court say
in one: "It is extremely well settled that exemplary or vin-
dictive damages may, in certain cases, be recovered; and this
is, perhaps, in accordance with the legislative policy which has
given pecuniary penalties in numerous instances to private
prosecutors of certain offenses. Where the wrong done to the
party partakes of a criminal character, though not punishable
as an offense against the state, the public may be said to have

American constitutions on the same

He concluded his opinion by say-
ing: "The true rule, simple and
just, is to keep the civil and crimi-
nal process and practice distinct
and separate. Let the criminal law
deal with the criminal, and ad-
minister punishment for the legiti-
mate purpose and end of punish-
ment, — namely, the reformation of
the offender and the safety of the
people. Let the individual whose
rights are infringed, and who has
suffered injury, go to the civil
courts, and there obtain full and
ample reparation and compensation ;
but let him not thus obtain the
'fruits' to which he is not entitled,
and which belong to others. Why
longer tolerate a false doctrine,
which, in its practical exemplifica-
tion, deprives a defendant of his
constitutional right of indictment
or complaint on oath before being
called into court? deprives him of
the right of meeting the witnesses
against him face to face? deprives
him of the right of not being com-
pelled to testify against himself?
deprives him of the right of being
acquitted, unless the proof of his
offense is established beyond a rea-
sonable doubt? deprives him of the
right of not being punished twice
for the same offense? Punitive
damages destroy every constitu-
tional safeguard within their reach.

And what is to be gained by this
annihilation and obliteration of
fundamental law? The sole object,
in its practical results, seems to be
to give a plaintiff something which
he does not claim in his declara-
tion. If justice to the plaintiff re-
quires the destruction of the con-
stitution, there would be some pre-
text for wishing the constitution
were destroyed. But why demolish
the plainest guaranties of that in-
strument, and explode the very
foundation upon which constitu-
tional guaranties are based, for no
other purpose than to perpetuate
false theories and develop unwliole-
some fruits? Undoubtedly this per-
nicious doctrine 'has become so fixed
in the law,' to repeat the language
of Mr. Justice Campbell, of Michi-
gan, 'that it may be difficult to get
rid of it.' But it is the business of
courts to deal with difficulties: and
this heresy should be taken in hand
without favor, firmly and fearless-
ly. It was once said: 'If thy right
eye offend thee, pluck it out : . . .
and if thy right hand offend thee,
cut it off.' Wherefore, not reluc-
tantly, should we apply the knife to
this deformity, concerning which
every true member of the sound and
healthy body of the law may well
exclaim: 'I have no need of thee.'"
2 Greenlf. Ev., §§ 25.*^. 273; Boyer
v. Barr, 8 Neb. 68, 30 Am. Rep.


an interest that the wrong-doer should be prosecuted and
brought to justice in a civil suit ; and exemplary damages may,
in such cases, encourage prosecutions where mere compensation
for the private injury would not repay the trouble and expense
of the proceeding." ^^ In a subsequent case ^^ this doctrine
was approved, and the court add that it "furnishes the most
efficient, if not the only, means of correcting many very serious
social abuses ; and among those that of gi*oss negligence, which
puts at unnecessary hazard the life and limbs of large numbers
of passengers, must take high rank. It is not, therefore, to be
regretted that the law has established an exception to the ordi-
nary rule in respect to damages, and armed the sufferer in such
eases with the power to administer a corrective which cannot
or will not otherwise be efficiently applied at all."

§ 392. Same subject; rule of United States Supreme Court; in
what actions recoverable; conflict of laws. The foregiing views
have been sanctioned by the supreme court of the United
States. Mr. Justice Grier said : " "It is a well established
principle of the common law that in actions of trespass, and all
actions on the case for torts, a jury may inflict what are called
exemplary, punitive or vindictive damages upon a defendant,
having in view the enormity of his offense, rather than the
measure of compensation to the plaintiff. We are aware that
the propriety of this doctrine has been questioned by some
writers; but if repeated judicial decisions for more than a
century are to be received as the best exposition of what the law
is, the question will not admit of argument. By the common
as well as by statute law, men are often punished for aggra-
vated misconduct or lawless acts by means of a civil action, and
the damages, inflicted by way of penalty or punishment given
to the party injured. In many civil actions, such as libel,
slander, seduction, etc., the wrong done to the plaintiff is in-
capable of being measured by a' money standard; and the

16 Hopkins v. Railroad, 36 N. H. ruled Pegram v. Stortz, 31 W. Va.

9, 72 Am. Dec. 287. 220, denying the recovery of puni-

16 Taylor v. Railway, 48 N. H. tive damages.

320. See the discussion in Mayer 17 Day v. Woodworth, 13 How.

T. Frobe, 40 W. Va. 246, which over- 371, 14 L. ed. 185.


damages assessed depend on the circumstances, showing the
degree of moral turpitude or atrocity of the defendant's con-
duct, and may properly be termed exemplary or vindictive
rather than compensatory. In actions of trespass, where the
injury has been wanton and malicious, or gross and outrageous,
courts permit juries to add to the measured compensation of
the plaintitt", which he would have been entitled to recover had
the injury been inflicted without design or intention, something
farther by way of punishment or example, which has some-
times been called 'smart money.' This has always been left to
the discretion of the jury, as the degree of punishment to be
thus inflicted must depend on the peculiar circumstances of
each case. It must be evident, also, that as it depends upon tlie
degree of malice, wantonness, oppression or outrage of the de-
fendant's conduct, the punishment of his delinquency cannot
be measured by the expenses of the plaintiff in prosecuting his
suit. It is true that damages, assessed by way of example, may
thus indirectly compensate the plaintifl" for money expended in
counsel fees; but the amount of these fees cannot be taken as
the measure of punishment or a necessary element in its in-
fliction.'' ^^ It was said in a case ruled in the same court in
1892 : "In this court the doctrine is well settled that in actions
of tort the jury, in addition to the sum awarded by w^ay of com-
pensation for the plaintifl's injury, may award exemplary,
punitive or vindictive damages, sometimes called 'smart
money,' if the defendant has acted wantonly, or oppressively,
or with such malice as implies a spirit of mischief or criminal
indifl'ereuce to civil obligations. But such guilty intention on

18 Stimpson v. Railroad, 2 Wall. tlie recovery of duulilo tlio value of

Jr., 1G4; Milwaukee, etc. R. Co. v. stock killed or damage caused tliere

Arms, 91 U. S. 489, 23 L. ed. :574; to by tlie neglect of railroad coii:-

12 Am. Neg. Cas. 686; Denver, etc. panics to comply with the law con-

R. v. Harris, 122 U. S. 597, 'M L. cerning the fencing of their roads

ed. 1146; IMinneapolis, etc. R. Co. do not infringe the fourteenth

V. Beck with, 129 U. S. 26, 32 L. ed. amendment, to the fed.^ral const itu-

585. *• -ii 1 • ■ 1

_.^ . , ,, . turn, either as depiivmg such corn-
It IS h(dd ui the case last cited

and also in Missouri Pac. R. Co. v. J^*'"^''^ °^ property without due

Humes, 115 U. S. 512, 29 L. ed. P'ocess of law or denying them the

563, that statutes which authorize equal protection of the laws.
Suth. Dam. Vol. 11.-2.

1266 snTIlERLAND ON DAMAGES. [§ 392

'-•.*•-. ■ ■ i

the part of the defendant is required in order to charge him
with exemplar}' or punitive damages." ^^ The recovery of such
damages in the federal courts is not dependent upon their
recognition in the courts of the state in which the action arose
if the constitution and statutes thereof are silent concerning

In the actions here spoken of the conduct and motives
of the defendant are open to inquiry with a view to the amount
of damages. If, in committing the wrong complained of, he
acted recklessly, oppressively, insultingly or wilfully and ma-
liciously, with a design to oppress and injure, the jury in fixing
the damages may disregard the rule of compensation ; and be-
yond that, may, as a punishment of the defendant, and as
protection to society against the violation of personal rights
and social order award such additional damages as in their dis-
cretion they may deem proper,'^ This rule has been held to
apply in all actions for toi-ts- — in actions for personal injuries,
in cases of a wilful injury to property, in slander, libel, seduc-
tion, false imprisonment, malicious prosecution, abuse of proc-
ess, alienation of ali'ections and in actions for tort founded upon
negligence amounting to misconduct and recklessness.^' In

19 Lake Shore, etc. R. Co. v. Pren- the judgment and discretion of the

ticc, 147 U. 8. 101, 107, 37 L. ed. jury, in determining the amount,

07, 101, 8 Am. Neg. Cas. 703; should not be disturbed l)y a court."

Scott V. Donald, 165 U. S. 58, 87, 41 Nashville, etc. 11. Co. v. Blaekmon,

L. ed. 632, 637; Cowen v. Winters, 7 Ala. App. 530, citing Louisville &

37 C. C. A. 628, 96 Fed. 929. N. R. Co. v. Bizzell, 131 Ala. 429;

20Woldson v. Larson, 164 Fed. Coleman v. Pepper, 159 Ala. 310.

548, 90 C. C. A. 422. To the same effect : Yazoo, etc. R.

21 Coal Belt E. R. Co. v. Young, Co. v. May, 104 Miss. 422, 44 L.R.A.

120 111. App. 051; Baltimore & 0. (N.S.) 1138.

R. Co. v. Strul^e, 111 Md. 119; Cot- 22 Birmingham Ledger Co. v.

trell v. Fountain, 80 N. J. L. 1 ; Bucluxnan, 10 Ala. App. 527;

Canfield v. Chicago, etc. R. Co., 59 Pontius v. Kimble, 56 Ind. App.

Mo. App. '354, quoting the text; 144; Verwers v. Carpenter, 160

Hulbert v. Arnold, 83 N. J. L. 114. Iowa 273; Stalker v. Drake, 91 Kan.

If such damages are "fixed with 142; Louisville & N. R. Co. v. All-
due regard to the wrong perpetrat- nutt, 150 Ky. 831; Groh v. Soutli,
ed, in the liglit of the evidence upon — Md. — , 89 Atl. 321; Williams
which the finding is predicated, v. Southern Ry. Co., — Miss. — , 64
with a view of punishment to the So. 909; Buckley v. Knapp, 48 Mo.
end of preventing similar wrongs, 152; Ellis v. Wahl, ISO Mo. App.

^ 392]



cases of this sort the applicability of the rule is apparent, since
express or implied malice, or a wilful disregard of the rights of

507; Colbert v. Journal Pub. Co.,
19 N. M. 156; Cooper v. Southern
R. Co., 165 N. C. 578; Luther v.
Shaw, 157 Wis. 234, 52 L.R.A.
(N.S.) 85; Woldson v. Larson, 164
Fed. 548, 90 C. C. A. 422; Kress v.
Lawrence, 158 Ala. 652; lacger v.
Metcalf, 11 Ariz. 283; St. Louis,
etc. R. Co. V. Stamps, 84 Ark. 241;
Bogudski V. Backes, 83 Conn. 208;
Keane v. Main, 83 Conn. 200; Mor-
gan V. Langford, 126 Ga. 58; South-
ern R. Co. V. Hill, 125 Ga. 354;
Selnian v. Barnett, 4 Ga. App. 375 ;
Henderson v. McGruder, 49 Ind.
App. 682; Fleming v. Loughren, 139
Iowa 517; Tyler v. Bowen, 124 Iowa
452; Hollingsworth v. Western U.
Tel. Co., 82 Kan. 472; Martin v.
Garlock, 82 Kan. 266; Walterscheid
V. Crupper, 79 Kan. 627; Louis-
ville & N. R. Co. V. Sewell, 142 Ky.
171; Chesapeake & 0. R. Co. v. Con-
ley, 136 Ky. 601; Louisville & N.
R. Co. V. Smith, 135 Ky. 462;
Louisville G. Co. v. Kentucky H.
Co., 132 Ky. 435; Louisville & N.
R. Co. V. Roth, 1,30 Ky.'759; Bernos
V. Canepa, 114 La. 517; Lord v.
Maine Cent. R. Co., 105 Me. 255;
Sisson V. Lampert, 159 Mich. 509;
Schnider v. Montross, 158 Mich.
263; Marlatte v. Weickgenant, 147
]\Iich. 266; Griser v. Schoenborn,
109 ]\Iinn. 297; Baunigartner v.
Hodgdon, 105 Minn. 22; Grimestad
V. Lofgren, 105 Minn. 286, 127 Am.
St. -'■)66, 17 L.R.A. (N.S.) 990; Car-
penter v. Hamilton, 185 Mo. 603;
McNamara v. St. Louis T. Co., 182
Mo. 676, 66 L.R.A. 486; Summers
V. Keller, 152 Mo. App. 626;
Schafer v. Ostmann, 148 Mo. App.
644; Cook v. Neely, 143 Mo. App.
632; Baxter v. Magill, 127 Mo. App.
392; Happy v. Priehard, 111 Mo.

App. 6; Cooper v. Scyoc, 104 Mo.
App. 414; Shandy v. McDonald, 38
Mont. 393; Miller v. Rambo, 73 N.
J. L. 726; Blackmore v. Ellis, 70
N. J. L. 264; Blow v. Joyner, 156
N. C. 140; Brame v. Clark, 148 N.
C. 364, 19 L.R.A. (N.S.) 1033; Au-
gust v. Finnerty, 10 Ohio C. C.
(N. S.) 433; Stark v. Epler, 59 Ore.
262; Perovieh v. Domansky, 231 Pa.
66; Wirsing v. Smith, 222 Pa. 8;
Sperry v. Seidel, 218 Pa. 16; Lewis
v. Fleer, 30 Pa. Super. 237; Guz-
man V. Herencia, 4 Porto Rico Fed.
105; Smith v. Macomber, 28 R. I.
248; Hickey v. Booth, 29 R. I.
466, 132 Am. St. 832; Lindler v.
Southern R. Co., 84 S. C. 536; Cole
v. Blue Ridge R., 75 S. ('. 156;
Bailey v. Walton, 24 S. D. 118; St.
Louis S. R. Co. V. Thompson, 102
Tex. 89; First Bank v. Steffens, 51
Tex. Civ. App. 211; Murphy v.
Booth, 36 Utah 285; Dubois v.
Roby, 84 Vt. 465; Zell v. Dunaway,
115* Md. 1; Singer Mfg. Co. v.
Bryant, 105 Va. 403; Hunt v. Di
Bacco, 69 W. Va. 449; Bogue v.
Gunderson, 30 S. D. 1; Smith
v. Fahey, 63 W. Va. 346; Davis v.
Chesapeake & 0. R. Co., 61 W. Va.
246, 9 L.R.A. (N.S.) 993; Stevens v.
Friedman, 58 W. Va. 78; White v.
Wiute, 140 Wis. 538, 133 Am. St.
1100; Deragon v. Sero, 137 Wis.
276, 20 L.R.A. (N.S.) 842; Moore v.
Fisher, 117 Minn. 3.39; Union M.
Co. v. Prenzler, 100 Towa 540;
O'Connell v. Rosso, 56 Ark. 603;
Watson V. Hastings, 1 Penne. 47 ;
Citizens' St. R. Co. v. Willoeby, 134
Ind. 563, 8 Am. Neg. Cas. 224;
Lake Erie & W. R. Co. v. Bradford,
15 Ind. App. 6.55, -57 Am. St. 245;
Carson v. Smith, 133 Mo. 606;
Wliitc v. Barnes, 112 N. C. 323;



[§ 392

others forms the basis of plaintiff's action. The elements of
malice or wilfulness are necessarily always present. It has

Hamcrlynck v. Banfield, 36 Ore. 36;
Matheis v. Mazct, 164 Pa. 580;
Wiley V. McGrath, 1!)4 Pa. 498, 75
Am.' St. 709; Vogel t. McAuliffe,
18 R. I. 791; Duckett v. Pool, 34
S. C. 311, 17 Am. Neg. Cas. 352,
reviewing earlier cases in tlic
state) ; vSamuels v. Richmond, etc.
R. Co., 35 S. C. 493, 28 Am. St.
883; Glover v. Charleston & S. R.
Co., 57 S. C. 228; Telephone & Tel.
Co. V. Shaw, 102 Tenn. 313; Thirk-
field v. Mountain View Cemetery
Ass'n, 12 Utah 76, citing the text;
Farr v. Swigert, 13 Utah 150, citing
the text; Mayer v. Frobe, 40 W. Va.
246, overruling Pegram v. Stortz, 31
VV. Va. 220, and Beck v. Thompson,
31 \\'. Va. 459; Vassau v. Madison
E. R. Co., 106 Wis. 301; East Ten-
nessee, etc. R. Co. v. Fleetwood, 90
Ga. 23, 8 Am. Neg. Cas. 143; High-
land Ave. & B. R. Co. v. Robinson,
125 Ala. 483; Pickens v. South
Carolina & G. R. Co., 54 S. C. 498,
507, correcting a statement in Quinn
v. South Carolina R. Co., 29 S. C.
381, 10 Am. Neg. Cas. 237, 1 L.R.A.
682, to the effect that wilfulness is
not essential to the recovery of ex-
emplary damages; Watt v. Soutli
Bound R. Co., 60 S. C. 67, 74, say-
ing that gross negligence is not
ground for exemplary damages;
Bingham v. Lipman, 40 Ore. 363;
Cosgriff v. Miller, 10 Wyo. 234,
citing the text; Borland v. Barrett,
76 Va. 128, 44 Am. Rep. 152;
Eviston v. Cramer, 57 Wis. 570;
Templeton v. Graves, 59 Wis. 95;
Brown v. Evans, 17 Fed. 912; Sow-
era V. Sowers, 87 N. C. 303; John-
son V. Allen, 100 id. 131; Webb v.
Gilman, 80 Me. 177; Bergmann v.
Jones, 94 N. Y. 51 ; Spear v. Hiles,
67 Wis. 350, 58 Am. Rep. 853;

IMttsbiirg, etc. R. Co. v. Lyon, 123
Pa. 140, 2 L.R.A. 489, 10 Am. St.
517; Alabama, etc. R. Co. v. Hill,
90 Ala. 71, 9 Am. Neg. Cas. 11, 24
Am. St. 764, 9 L.R.A. 442; Kem-
mitt v. Adamson, 44 Minn. 121 ;
Barlow v. Lovvder, 35 Ark. 492;
Holt V. Van Eps, 1 Dak. 198; Bates
v. Callender, 3 Dak. 256; Smith v.
Bagwell, 19 Fla. 117, 45 Am. Rep.
12; Harrison v. Ely, 120 111. 83;
Wales V. Miner, 89 Ind. 118; State
V. Stevens, 103 id. 55, 53 Am. Rep.
482; Farman v. Lauman, 73 Ind.
568; Parkhurst v. Mastellar, 57
Iowa 474; Root v. Sturdivant, 70
Iowa 55; Wilkinson v. Drew, 57 Me.
360; Boetcher v. Staples, 27 Minn.
308; MacGowan v. Duff, 14 Daly
315; Day v. Holland, 15 Ore. 464;
Lake Shore, etc. R. Co. v. Rosen-
zweig, 113 Pa. 519, 10 Am. Neg. Cas.
79; Holmes v. Carolina Cent. R. Co.,
94 N. C. 318; Knowles v. Norfolk
S. R. Co., 102 id. 59, 8 Am. Neg.
Cas. 564;. Louisville & N. R. Co. v.
Ballard, 85 Ky. 387, 8 Am. Neg.
Cas. 294, 88 Ky. 159, 2 L.R.A. 694;
Sloan V. Edwards, 61 Md. 89; Voltz
V. Blackmar, 64 N. Y. 440; Tift v.
Culver, 3 Hill 180; Tillotson v.
Cheetham, 3 Johns. 56, 3 Am. Dec.
459 ; W'ort v. Jenkins, 14 Johns.
352; Taylor v. Railway, 48 N. II.
320; Fleet v. Hollenkemp, 13 B.
Mon. 219, 56 Am. Dec. 563; Jen-
nings V. Maddox, 8 B. Mon. 432;
Illinois, etc. R. Co. v. Cobh, 68 Til.
53; Becker v. Dupree, 75 id. 167;
Robinson v. Burton, 5 Harr. 335
(but see McCoy v. Philadelphia,
etc. R. Co., 5 Houst. 599) ; Fox v.
Stevens, 13 Minn. 272; Young v.
Mertens, 27 Md. 114; Elbin v. Wil-
son, 33 id. 135; Wade v. Thayer, 40
Cal. 578; McWilliams v. Bragg, 3

§ 392]



also been applied in an action for malicionsly injuring the busi-
ness of another under the guise of competition,^' for maliciously

Wis. 524; Hoadley v. Watson, 45
Vt. 289, 12 Am. Rep. 197; (Jilreatli
V. Allen, 10 Ired. 67; Bradley v.
Morris, Busbee, 395 ; Stevenson v.
Belknap, 6 Iowa 97, 71 Am. Dec.
392; Reeder v. Purdy, 48 111. 261;
Chicago, etc. R. Co. v. Williams, 55
id. 185, 8 Am. Neg. Cas. 160, 8 Am.
Rep. 641 ; McNamara v. King, 7 111.
43; Kalb v. O'Brien, 86 id. 210;
Stillwell V. Barnett, 60 id. 210;
Bauer v. Gottnianliaiiser, 65 id. 409;
Lawrence v. Hagerman, 56 id. 68,
8 Am. Rep. 674; Clevenger v. Dun-
away, 84 111. 367; Sherman v.
Dutch, 16 id. 283; Drolm v. Brewer,
77 id. 280; Miller v. Kirby, 74 id.
242; Scott v. Bryson, id. 420; Far-
well V. Warren, 70 id. 28; Grable
V. Margrave, 4 id. 373, 38 Am. Dec.
88; .Johnson v. Weedman, 5 111. 495;
Smalley v. Sniallcy, 81 id. 70; .Mc-
Bride v. McLaughlin, 5 Watts 375;
AUaback v. Utt, 51 X. Y. 654; Von
Fragstein v. Windier, 2 Mo. App.

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