sociation to the Narragansett Electric Lighting Company and the current could then be turned on. Such, in brief, was the situation between the parties as set forth in the pleadings and proofs. It is to be noted that by the terms of the license issued to the plaintiff such license might be revoked upon failure of the plaintiff or his employés "to conform to the rules of the association of Providence and the Narragansett Electric Light Company within one week after written notification of breach of rules has been given." The plaintiff therefore agreed by accepting such license to conform to said rules in all his work.

The plaintiff in his declaration, having premised the situation and relations of the parties as above set forth, proceeds to allege that:

"It became and was the duty of the defendant in his official capacity as inspector, as aforesaid, to inspect all the plaintiff's wiring

and his certificate of license from the Insurance Association of Providence, set forth on pages 48-49 of the transcript of testimony, bears date April 16, 1901. At all events, it is not disputed that during the time of the acts complained of in the declaration he was required to have his work inspected by the Insurance Association of the city of Providence before the Narragansett Electric Lighting Company would permit the current to be turned on. The Insurance Association of the city of Providence is a voluntary association of domestic fire insurance companies and the agents of foreign companies doing business in Providence. The plaintiff was licensed by said Insurance Association as follows: "Insurance Association of Providence, No. 15. Providence, R. I., April 16, 1901. This is to certify that Chapin T. Arnold, having been duly examined and found to be competent, is hereby licensed by this association to do electrical wiring and installing electrical apparatus in or about buildings within the ju* promptly, fairly, and imparrisdiction of this association. This license tially and to report thereon promptly, fairly, may be revoked by this association upon the and impartially, so that the plaintiff would failure of the above contractor or his or their not be hindered, delayed, damaged, and inemployés to conform to the rules of the as- jured financially or in his reputation as an sociation of Providence and the Narragansett electrician or electric contractor or otherwise Electric Light Company within one week aft- through the failure of the defendant to make er written notification of breach of rules has such prompt, fair, and impartial inspection of been given. [Signed] Insurance Association the plaintiff's wiring, and promptof Providence, by George A. Waldron, Sur-ly, fairly, and impartially to make report veyor, A. A. Moffitt, Electrical Inspector." thereon. Yet the defendant, disregarding his In order to decrease the fire hazard, this association has in the past examined and issued licenses to electricians, including the plaintiff (as above shown), and has caused an inspection to be made of the work of such electricians to determine whether the work was properly done according to its rules and according to the rules of the Narragansett Electric Lighting Company and the rules of the National Board of Fire Underwriters. The Narragansett Electric Lighting Company turned on the current only after the issuance of a certificate by the Insurance Association. This certificate was issued after final inspection on completion of the work of installation of wires and fixtures. A "rough-wiring inspection" was made after the wires had been installed and before they were covered up by laths and plaster. It was customary for the Narragansett Electric Lighting Company to issue service slips in duplicate, one to the electrical contractor and one to the electrical inspector for the Insurance Association, upon which the plan of work to be done by the contractor was set forth; and the rough-wiring inspection was made by the inspector of the Insurance Association upon receipt of the plan and notification that the wiring was ready for inspection. This inspection was usually made within 24 or 48 hours after notice. The final inspection was made after notice from the contractor or the person furnishing the fixtures. If no changes (5) As to work done on the house of Daniel were ordered made after final inspection, a Riley on Woonasquatucket avenue, Provicertificate was issued by the Insurance As-dence, as to which it appeared from the testi

duty in this behalf, and willfully and maliciously intending and contriving to injure the plaintiff in his said business and in his reputation as an electrician and electrical contractor and as a business man, and to cause him loss and damage therein and thereby and to injure his reputation therein, * * did the several acts complained of in the distinct instances set forth in the 10 counts of the declaration," viz.:

(1) Neglect, fail, and refuse for an unreasonable length of time, to wit, for more than three months, to inspect and report upon certain wiring in houses on Francis street, Providence, in 1905.

(2) Neglect and refusal to inspect certain wiring in the tailor shop of A. L. Sutton in August, 1906, and refusal to report thereon unless the plaintiff would make certain unnecessary and unreasonable changes, which the plaintiff was thereupon compelled to make.

(3) Neglect and refusal to report to the Narragansett Electric Lighting Company in the matter of the wiring at the house of Mark Streicher on Public street, in January, 1906.

(4) This count relates to wiring in a house in Riverside, as to which inspection was made by Mr. Myrick, the defendant's assistant, and the defendant had nothing to do with it. This count was withdrawn by the court from the consideration of the jury.

pany.

and third counts. The trouble in this matter | of the Narragansett Electric Lighting Comseems to have been caused by Dr. Kelley, who refused to allow the plaintiff to put in an extra switch as ordered by the defendant. Again the defendant appears to have obeyed the rule.

The seventh count was not submitted to the jury.

We do not find, therefore, that in any of the matters complained of in the declaration the defendant has been guilty of any illegal act whereby the plaintiff has been damaged.

But the plaintiff appears to proceed upon the theory that, although the defendant may As to the eighth count, charging that the not have done any illegal act, yet he is liable defendant maliciously represented to the Citi- to the plaintiff by reason of the malicious zens' Savings Bank, Thomas P. Smith, a con- character of his acts. The declaration is tractor, and Charles H. Philbrick, an insur- framed upon this theory, and the opening line ance agent and one of the managers of the of the plaintiff's brief says: "This is an acInsurance Association, that the plaintiff's bill tion on the case for malicious injury done for certain work in which they were inter- to the plaintiff's business," etc. In other ested was exorbitant, it appeared by the tes- words, the plaintiff seems to believe that it timony that in 1907 the plaintiff had been is so well settled that malice is the gist of hired by Mr. Smith to do the electrical work | the action, and that proof of malice in doing necessary in repairing the Savoy Building the acts complained of shows a good cause after a fire, and that the insurance companies interested in the loss had elected to replace the building in its former condition, so that the bill for electrical work was to be paid by the insurance companies represented by Mr. Philbrick. It appeared that Mr. Philbrick was informed by Mr. Smith that the plaintiff's bill would probably be large, and that Mr. Philbrick asked the defendant as an expert to look over the work and tell him how much it ought to cost. Mr. Moffitt did this to accommodate Mr. Philbrick, because the latter was a member of the Insurance Association, and afterwards apologized to the plaintiff, and said he was sorry that he was called into it. It is to be noticed that the general contractor, Mr. Smith, was the one who first called Mr. Philbrick's attention to the probable large amount of the plaintiff's bill, that Mr. Moffitt came into the matter at the request of Mr. Philbrick, who was, in a sense, his employer, or one of his employers, so that it was quite natural for Mr. Philbrick to call upon Mr. Moffitt for an opinion, as he was the one person outside of Arnold and his employés who could most readily give an opinion. While it was strictly no part of the defendant's duty as an inspector to give such an opinion, we cannot say that the defendant did any wrong or injury thereby; and there is no evidence that the opinion given was other than a fair and honest opinion. If the plaintiff was put to expense and loss by reason of the refusal to pay his bill, his remedy was against the parties who were liable to him upon the contract, rather than against this defendant, who stood in the relation of an expert witness in the matter.

As to the ninth count, the jury were instructed that no damages should be assessed. As to the tenth count, wherein it is alleged that in November, 1907, the defendant maliciously compelled the plaintiff to follow rules in wiring a building at the corner of Weybosset and Clemence streets different from those followed by a contractor in an adjoining building, the testimony plainly showed that the change required to be made in the work was in accordance with the rules

of action, that he seems to treat it as a foregone conclusion, and cites no cases whatever in support of this proposition. We are unable, however, to agree that this view of the law is correct. On the contrary, we find the overwhelming weight of authority, both in England and in this country, to be to the effect that an act lawful in itself is not converted by a malicious or bad motive into an unlawful act so as to make the doer of the act liable to a civil action. While there were some expressions used by the judges in the English cases of Lumley v. Gye, 2 El. & Bl. 216, Bowen v. Hall, L. R. 6 Q. B. Div. 333, and Temperton v. Russell (1893) 1 Q. B. 715, which might be regarded as supporting the view that malice was of the gist of the action, yet each of those cases was one where the defendant had been guilty of an unlawful act in procuring the breach of a contract actually made and in force with the plaintiff. But those portions of the opinions in the above-cited cases which held that malice and evil intent was the gist of the action were expressly disapproved as erroneous in Allen v. Flood (1898) A. C. 1. And the proposition laid down in Allen v. Flood, that the exercise of an absolutely legal right cannot be treated as wrongful merely because a malicious intention prompted such exercise, was acquiesced in by all of the law lords who wrote opinions in Quinn v. Leathem (1901) A. C. 495. It may be taken then to be the settled law of England, as laid down in the case of Allen v. Flood (1898) A. C. 1, by Lord Watson, at page 92: "Although the rule may be otherwise with regard to crimes, the law of England does not, according to my apprehension, take into account motive as constituting an element of civil wrong. Any invasion of the civil rights of another person is in itself a legal wrong, carrying with it liability to repair its necessary or natural consequences, in so far as these are injurious to the person whose right is infringed, whether the motive which prompted it be good, bad, or indifferent. But the existence of a bad motive, in the case of an act which is not in itself illegal, will not convert that act into

1

The plaintiff is to show cause on March 7, 1910, at 10 a. m., why judgment should not be entered for the defendant.

a civil wrong for which reparation is due. (specific exceptions alleged by the defendant A wrongful act, done knowingly and with a becomes unnecessary. view to its injurious consequences, may, in the sense of law, be malicious; but such malice derives its essential character from the circumstance that the act done constitutes a violation of the law." And the same general doctrine has been followed in numerous cases

Supplemental Opinion.

any reason why the plaintiff should have a new trial. He has evidently produced all of the testimony which he has, and has failed to prove that the defendant has been guilty of any unlawful act, and so has failed to show any cause of action.

PER CURIAM. In accordance with the orin this country. See Perrault v. Gauthier, der to show cause embodied in the opinion in 28 Can. Sup. Ct. 241; Boyson v. Thorn, 98 this case filed February 25, 1910, the plaintiff Cal. 578, 33 Pac. 492, 21 L. R. A. 233; Mc- was heard by counsel on March 7, 1910, and Cune v. Norwich City Gas Co., 30 Conn. 524, urged upon the court various reasons why the 79 Am. Dec. 278; Kelly v. Chicago, etc., 93 court should order a new trial rather than Iowa, 452, 61 N. W. 957; Chambers v. Bald-order judgment for the defendant. We do win, 91 Ky. 121, 15 S. W. 57, 11 L. R. A. not find therein any sufficient reason to modi545, 34 Am. St. Rep. 165; Bourlier v. Mae-fy in any way the opinion already given, nor auley, 91 Ky. 135, 15 S. W. 60, 11 L. R. A. 550, 34 Am. St. Rep. 171; Perkins v. Pendleton, 90 Me. 166, 38 Atl. 96, 60 Am. St. Rep. 252; Heywood v. Tillson, 75 Me. 225, 46 Am. Rep. 373; Bohn Mfg. Co. v. Hollis, 54 Minn. 223, 55 N. W. 1119, 21 L. R. A. 337, 40 Am. St. Rep. 319; Hunt v. Simonds, 19 Mo. 583; Glencoe, etc., v. Hudson, etc., 138 Mo. 439, 40 S. W. 93, 36 L. R. A. 804, 60 Am. St. Rep. 560; Pickard v. Collins, 23 Barb. (N. Y.) 459; Jenkins v. Fowler, 24 Pa. 308; Glendon Iron Co. v. Uhler, 75 Pa. 467, 15 Am. Rep. 599; Smith v. Johnson, 76 Pa. 191; Wilson v. Berg, 88 Pa. 172; Lancaster v. Hamburger, 70 Ohio St. 156, 71 N. E. 289, 65 L. R. A. 856.

The case will be remitted to the superior court, with direction to enter judgment for the defendant.

March 11,

AYERS v. TENNY. (Supreme Court of Rhode Island. 1910.) Exceptions from Superior Court, Providence and Bristol Counties; Darius Baker, Judge. Action by Susan M. Ayers against Fanny A. Tenny. Judgment for defendant, and plaintiff excepts. Exceptions overruled.

We conclude, therefore, in view of the general doctrine laid down in the above cases, that, inasmuch as there is no proof of any illegal act on the part of the defendant, it is of no consequence that it might be made to appear that the defendant was actuated by malicious motives in what he did as inspector. The evidence of any actual malice on the part of the defendant is of so slight a character that it seems rather upon a consideration of the whole evidence to be a case where through some slight misunderstandings between the parties, and occasional loss of temper, the plaintiff had gotten himself into a state of mind where he was willing and anxious to believe that the defendant was actu- (Supreme Court of Rhode Island. ated by personal malice towards him, rather than by a sense of his duty as inspector. But, however unpleasant may have been the feelings of the parties toward each other, there is no evidence that the defendant went beyond his strict duty so far as enforcing the rules of inspection of the plaintiff's work was concerned, and so there can be no malice implied in this case, as it might have been, had acts of a strictly illegal character been proved.

Page & Cushing, for plaintiff. Lellan J. Tuck, for defendant.

PER CURIAM. There is no merit in the plaintiff's exceptions. This case is governed by that of Wilcox v. R. I. Co., 29 R. I. 292, 70 Atl. 913.

The plaintiff's exceptions are therefore overruled, and the case is remitted to the superior court, with direction to enter judgment for the defendant.

Upon the whole evidence, we are of the opinion that no cause of action has been shown, and therefore a consideration of the

MCNAMEE v. LEACH.

1910.)

March 11,

Exceptions from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

Action by Margaret McNamee against Mark Leach. Verdict for plaintiff, and defendant excepts. Exceptions overruled, and case remitted for judgment on verdict.

T. P. Corcoran, for plaintiff. roll, for defendant.

Hugh J. Car

PER CURIAM. The evidence is sufficient to establish the plaintiff's case. The defendant's exceptions are without merit, and are therefore overruled, and the case is remitted to the superior court, with direction to enter judgment on the decision.

BRISCOE, J. This is an appeal from an order of the superior court of Baltimore City passed on the 14th day of May, 1909, sustaining the plaintiff's demurrer to the respondents' answer to a petition for mandamus, and directing the writ of mandamus to issue in accordance with the prayer of the plaintiff's petition filed in the case. The plaintiff below, and the appellee here, is the owner of 583 shares of the capital stock of For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes