bar in the hotel, and with the defendant's knowledge commenced selling liquors therefrom. On Sunday, July 18, 1875, the plaintiff's son, who was residing with his father, informed him that he had some business with a person residing about four miles from the father's residence, and thereupon, with the plaintiff's knowledge, took his horse and buggy and drove away. He did not go to the place where he informed the plaintiff he intended to go, but went to the village, where Firnhaber's hotel was located, and to the hotel, and there purchased and drank whiskey several times at the bar, and then drove to a neighboring village and drank again, and returned to Firnhaber's, drinking again on his return. He became, in consequence of these repeated potations, intoxicated, was arrested for disorderly conduct in the streets, and after being detained in custody for a time was discharged, and in the evening started for home, and the horse soon after it reached the plaintiff's house died. The jury have found, and the evidence fully justifies the finding, that it died from the overdriving by the plaintiff's son, and that his treatment of the horse was caused by his intoxication. Firnhaber had no license to sell intoxicating liquors. It was understood between him and the defendant, when the lease was made, that a license was to be procured, and the defendant informed him that he would see that he had one. The plaintiff's son was of intemperate habits, and at one time had been an inmate of an inebriate asylum. The plaintiff recovered a verdict for the value of the horse.

It cannot be disputed that the facts found bring the case within the terms of the statute and authorize the recovery, if the law itself is valid. The Act gives to every husband, wife, parent, guardian, employer or other person, "who shall be injured in person or property or means of support by any intoxicated person or in consequence of the intoxication" of any person, a right of action against any person who shall by selling or giving intoxicating liquors have caused the intoxication, in whole or in part, and declares that "any person or persons, owning or renting or permitting the occupation of any building or premises, and having knowledge that intoxicating liquors are to be sold thereon, shall be liable, severally and jointly with the person or persons selling or giving intoxicating liquors aforesaid, for all damages sustained and for exemplary damages." 1 All the elements of the landlord's liability under the Act exist in this case, viz.: the leasing of premises with knowledge that intoxicating liquors were to be sold thereon; the sale by the tenant, producing intoxication; and the act of the intoxicated person, causing injury to the property of the plaintiff.

The question we are now to determine is whether the Legislature has the power to create a cause of action for damages, in favor of a person injured in person or property by the act of an intoxicated

[The terms of another such statute are given in ante, No. 89.]

person, against the owner of real property, whose only connection with the injury is that he leased the premises where the liquor causing the intoxication was sold or given away, with knowledge that intoxicating liquors were to be sold thereon..

...

The element of care or diligence on the part of the seller or landlord does not enter into the question of liability. The statute imposes upon the dealer and the landlord the risk of any injury which may be caused by the traffic. It cannot be denied that the liability sought to be imposed by the Act is of a very sweeping character. . . . His only absolute protection against the liability imposed by the Act is to be found in not using or permitting the premises to be used for the sale of intoxicating liquors.

The question whether the Act under consideration is a valid exercise of legislative power is to be determined solely by reference to constitutional restraints and prohibitions. The legislative power has no other limitation. . .

Our conclusion is that the Act of 1873 is a constitutional enactment. It is doubtless an extreme exercise of legislative power, but we cannot say that it violates any express or implied prohibition of the Constitution.

The judgment must be affirmed, with costs.

All concur.

Judgment affirmed.

523. ERNST FREUND. The Police Power. (1904. §.634, p. 657.) Constitutionality of Absolute Liability. If the rule of absolute liability is held to be unconstitutional, it must be on the ground that justice and equality forbid that a person be required to make good the loss of another unless some fault, or culpability, can be imputed to him. This is the position taken by the Courts of Alabama, Montana, Wyoming, and Utah (§ 629, supra). But while the common law does require fault of some kind as a general principle, it has always recognized some exceptions (trespass of cattle, fire, etc.), and it cannot be said that the rules of the common law represent the only and final conclusions of justice. The principle that inevitable loss should be borne not by the person on whom it may happen to fall, but by the person who profits by the dangerous business to which the loss is incident, embodies a very intelligible idea of justice, and which seems to be in accord with modern social sentiment. Moreover, the rule of absolute liability is established in our law in the case of fires caused by locomotives and has been sanctioned by the United States Supreme Court. It also underlies the rule of respondeat superior, since the employer cannot relieve himself from liability for acts done by the servant within the scope of his employment, by proof of the greatest possible care in the selection of the servant. Logic and consistency, therefore, demand that liability irrespective of negligence should not be denounced as unconstitutional. The required element of causation may readily be found in the voluntary employment of dangerous instruments or agencies. Some preceding voluntary act, it seems, ought to exist, in order to justify liability. . . . 1

1 [TOPIC 4. PROBLEMS:

The defendant built a dam. The water confined by the dam percolated

Topic 5. Publishing a Defamation.

524. RUMNEY v. WORTHLEY

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1904

186 Mass. 144, 71 N. E. 316

TORT for alleged libel contained in two letters mailed by the defendant in January, 1901, and addressed to the plaintiff. Writ dated May 18, 1901.

through, and injured the plaintiff's premises. Is the defendant responsible per se? (1899, Texas & P. R. Co. v. O'Mahoney, - Tex. Civ. App. -, 50 S. W. 1049.) The defendant pulls down his own building on his own premises. Is he responsible per se for damage done to adjoining property? (1898, Ulshowski v. Hill, 61 N. J. L. 375, 39 Atl. 904.)

The defendant stored crude oil in tanks; it escaped and caught fire, damaging the plaintiff's property. Is the defendant responsible per se? (1903, Longabaugh v. Anderson, 68 Ohio 131, 67 N. E. 286.)

The defendant erected a high chimney, which was blown down by an extraordinary gale, damaging the plaintiff's property. Was the defendant responsible per se? (1894, Cork v. Blossom, 162 Mass. 330, 38 N. E. 495.)

The defendant stored powder on his premises. A storm of lightning caused it to explode, damaging the plaintiff's property. Was the defendant respon

sible per se? (1888, Laflin & R. Powder Co. v. Rand, 30 Ill. App. 321.)

The defendant had a mine under the plaintiff's land, and lawfully ran up a shaft to the surface. For lack of a fence around the shaft, the plaintiff's horse fell in and was killed. Is the defendant responsible per se? (1863, Williams v. Grancott, 4 B. & S. 148.)

The defendant had nitroglycerine in storage. It exploded, breaking windows a mile away. Is the defendant responsible per se? (1899, Bradford Glycerine Co. v. Mfg. Co., 60 Oh. 560, 54 N. E. 528.)

The defendant was blasting out a tree; part of the stump was thrown 400 feet into the highway, killing the plaintiff's intestate. Is the defendant responsible per se? (1900, Sullivan v. Dunham, 161 N. Y. 290, 55 N. E. 923.) The defendant was blasting rock within the city limits. A blast injured the plaintiff's building. Is the defendant responsible per se? (1902, Fitzsimmons & C. Co. v. Braun, 199 Ill. 390, 65 N. E. 249; 1898, Simon v. Henry, 62 N. J. L. 486, 41 Atl. 692.)

The defendant built and maintained a standpipe, for obtaining water-pressure in its service of water to the city. The standpipe burst, and the plaintiff, who was in a house close to it, was injured. Is the defendant responsible per se? (1896, Defiance Water Co. v. Olinger, 54 Oh. 532, 44 N. E. 238.)

The defendant surrounded its land with a barbed wire fence, and the plaintiff's horse was injured thereby. Is the defendant responsible at peril? (1900, Winkler v. R. Co., 126 N. C. 370, 35 S. E. 621.)

The defendant erected poles for electric lighting, one of which fell, being rotten, and injured the plaintiff. Is the defendant responsible per se? (1898, Denver v. Sherret, C. C. A., 88 Fed. 226.)

The defendant erected electric-light poles and strung high-voltage wires. By contact at a certain point where the insulation was not perfect, the current escaped and injured the plaintiff. Is the defendant responsible per se? (1898, Overall v. El. Light Co., Ky., 47 S. W. 442.)

The defendant owned a powder factory, which exploded and injured the plaintiff. The only supposable cause of the explosion was the malicious act

At the trial in the Superior Court before GASKILL, J., it was admitted that the defendant wrote and mailed the letters and that they were libellous. It appeared that the letters were opened and read by the plaintiff's daughter. The evidence in regard to publication is described in the opinion. At the close of the evidence, the judge ordered a verdict for the defendant on the ground that there was no publication of the letters by the defendant, and reported the case for determination by this court. If the ruling of the judge was correct, judgment was to be entered on the verdict; if not correct, the verdict was to be set aside and a new trial granted.

J. H. Morrison, for the plaintiff. J. J. Kerwin, for the defendant. KNOWLTON, C. J. The only question reserved in this report is whether there was any evidence of publication of the libels, or either of them, contained in the two letters addressed by the defendant to the plaintiff. These letters were sent by mail in the ordinary way, addressed to the plaintiff at No. 12 Burtt Street, Lowell, which was his place of residence. His wife conducted a grocery store which was attached to the dwelling-house at No. 14 Burtt Street, she having filed a certificate, under the provisions of the Pub. Sts. c. 147, § 11, that she was doing business as a married woman. The plaintiff acted as her agent in conducting the business, and his daughter, twenty-three years of age, was a clerk in the store.

Sending a libellous letter through the mail to the person libelled, with no reason to suppose that it will be opened and read by any one else before he has received and read it, is not a publication which will support a civil action for libel. Clutterbuck v. Chaffers, 1 Stark. 471; Delacroix v. Thevenot, 2 Stark. 63. . . . In criminal prosecutions for libel, the rule is generally held differently.

The question in this case is whether there was any evidence which would have warranted the jury in finding that the defendant believed, or had good reason to believe, that the letters might be opened and read by the plaintiff's daughter in his absence, and that she was authorized to open her father's letters. The question of difficulty is whether there was evidence that the defendant was aware that she was accustomed or authorized to read such letters, addressed to

of a discharged employee. Is the defendant responsible per se? (1902, Kleebauer v. Western F. & E. Co., 138 Cal. 497, 69 Pac. 246.)

NOTES:

"Liability for use of dynamite." (A. L. Reg., 51 O. S., 570.) "Liability for injury by contact with live wire." (A. L. Reg., 57 O. S., 639.) "Negligence; electric companies: degree of care required." (C. L. R., V, 169, 330.)

"Workmen's Compensation Act; liability of employer without fault constitutionality." (C. L. R., X, 751.)

--

"Adjoining landowners; duty to restrain employees." (C. L. R., X, 783.) "Employer's Liability Acts-Constitutionality of clause making employer's negligence immaterial" (H. L. R., XXIV, 243).]

her father. On this point the testimony is very unsatisfactory. . If he sends the letters, having good reason to believe that they were likely to be opened by an authorized person other than the plaintiff, his sending them by mail was a publication.

Verdict set aside.

525. VIZETELLY v. MUDIE'S SELECT

LIBRARY LIMITED

COURT OF APPEAL, QUEEN'S BENCH DIVISION. 1900

L. R. 2 Q. B. [1900] 170

APPLICATION for judgment or a new trial in an action tried before GRANTHAM, J., with a jury.

The action was for a libel contained in a book, copies of which had been circulated and sold by the defendants, who were the proprietors of a circulating library with a very extensive business. The defendants in their defence stated that if they sold or lent the book in question they did so without negligence, and in the ordinary course of their business as a large circulating libarry; that they did not know, nor ought they to have known, that it contained the libel complained of; that they did not know and had no ground for supposing that it was likely to contain libellous matter; and that under the circumstances so stated they contended that they did not publish the libel.

The plaintiff had been employed by Mr. Gordon Bennett of the New York Herald to proceed as the head of an expedition to Africa to search for Sir H. Stanley, who was then engaged in an expedition for the rescue of Emin Pasha, and to furnish news to the New York Herald on the subject. He met Stanley and Emin Pasha in Africa on their way down to the coast at a place called Msura; and subsequently sent off letters to Mr. Gordon Bennett. Messrs. Archibald Constable & Co., a well-known firm of publishers in October, 1898, published in this country a book called "Emin Pasha: his Life and Work," which was a slightly abridged English version of a work published in Germany that purported to be compiled from the journals, letters, and scientific notes of Emin Pasha and from official documents. It contained the following passage purporting to be an extract from Emin Pasha's diary:

“Vizetelly sent off three messengers to-day to the coast, each with a bulky letter. However, as he is not yet sober, he cannot surely have written them himself, and the solution of the problem is, as Dr. Parke tells us, simply that Stanley had the correspondence ready, and knocked it down to the highest bidder, Vizetelly, that is, Gordon Bennett, and quite right too."

This was the libel complained of. . . . Mr. A. O. Mudie, one of the defendant's two managing directors, who was called as a witness