say that they thought the article referred to him. . . . But the learned judge put a stop to calling further evidence by the following most remarkable ruling: "The question for the jury is whether people who happened to know Mr. Artemus Jones and who happened to read the article would as reasonable men think it meant him." He thus takes the interpretation, not of the world at large, but of the comparatively small class who knew of the plaintiff. . . . If I am right in my view, the direction of the learned judge to the jury was so materially erroneous that the verdict cannot stand. . . . The defendants are, in my opinion, entitled to a new trial. FARWELL, L. J. The appellants contend that the verdict and judgment in this case cannot stand, because it was proved that neither the writer of the libellous article, not any person in the defendants' employment under whose notice it came before it was published, knew or had even heard of the existence of the plaintiff, and that it therefore necessarily follows that the defendants cannot have intended the libellous words to apply to the plaintiff. The question for us is whether this contention is right. . . To prove the libellous nature of the words, that is, the innuendo . . . the first step is to prove that the words published, whether by name, nickname, or description, are such as reasonably to lead persons acquainted with the plaintiff to believe that he is the person to whom the libel refers; the next step is to prove that that is the true intent and meaning of the words used. This is what I understand to be meant by Lord COTTENHAM in LeFanu v. Malcomson:1 'If a party can publish a libel so framed as to describe individuals, though not naming them, and not specifically describing them by any express of words, but still so describing them it is known who they were, as the jurors have found it to be here, and if those who must be acquainted with the circumstances connected with the party described may also come to the same conclusion, and may have no doubt that the writer of the libel intended to mean those individuals, it would be opening a very wide door to defamation, if parties suffering all the inconvenience of being libelled were not permitted to have that protection which the law affords. . . ." It is, however, argued that when Lord COTTENHAM says "the writer of the libel intended to mean these individuals," he was referring to the intention expressed in the words that he has used, as explained by the relevant surrounding circumstances. In my opinion this is not so. . . . An action for defamation differs from other actions, such for instance as trespass, in that it is of the essence of the defamation that the plaintiff should be aimed at or intended by the defendant. The man who throws a squib into a crowd not intending to hit anyone is liable for the consequences of his act, whatever his intentions may have been, because the two necessary constituents of tort, namely, a wrongful act by the defendant and 11 H. L. C. 637, 644. actual damage to the plaintiff, are both present. But it is not enough. for a plaintiff in libel to shew that the defendant has made a libellous statement, and that the plaintiff's friends and acquaintances understand it to be written of him: he must also shew that the defendant printed and published it of him: for if the defendant can prove that it was written truly of another person the plaintiff would fail. To this extent I agree with FLETCHER MOULTON, L. J. But we differ as to the meaning of the word "intended." In my opinion the defendant intended the natural meaning of his own words in describing the plaintiff as much as in the innuendo. The inquiry is not what did the defendant mean in his own breast, but what did the words mean having regard to the relevant surrounding circumstances. . . . The squib-thrower is liable for the injury done by his squib to the plaintiff, whether he aimed at or intended to hit him or not; the libeller is not liable to the plaintiff unless it is proved that the libel was aimed at or intended to hit him; the manner of proof being such as I have already stated. If the libel was true of another person and honestly aimed at and intended for him, and not for the plaintiff, the latter has no cause of action, although all his friends and acquaintances may fit the cap on him. If this were not so, no newspaper could ever venture to publish a true statement of A., lest some other person answering the description should suffer thereby. . . . I am therefore of opinion that the defendant cannot complain of CHANNELL, J.'s summing up. I do not think that he intended to rule anything more than that the alleged actual, as distinguished from the expressed, intention of the defendant was under the circumstances of this particular case immaterial. 1 [TOPIC 5. PROBLEMS: Appeal dismissed.1 The defendant telegraph company transmitted the following message: "V. told me that Nye was bought off by P. in 1896." The message, though not on its face libellous, was libellous as understood by the addressee. Is the defendant responsible per se? (1900, Nye v. Telegraph Co., 104 Fed. 628.) The defendant wrote to the president of a corporation a letter libellous per se, complaining of the plaintiff's conduct as manager of a corporation; the defendant being a director, this letter would have been privileged. But by mistake the defendant mailed it in an envelope addressed to the plaintiff's brother, who received and opened it and handed it to the plaintiff. Is the defendant responsible per se? (1883, Tompson v. Dashwood, L. R. 11 Q. B. D. 43.) The plaintiff got up a public petition on some cause of local interest. The press correspondent telegraphed an item about it, referring to the plaintiff as "a cultured gentleman." The telegraph operator made this "a colored gentleman," and the editor of the defendant newspaper turned this into "a negro." Is the defendant responsible per se? (1900, Upton v. Publishing Co., 104 La. 141, 28 So. 970.) The defendant published an account of a disappearance or murder of “Pearl M. Ball," and the account attributed to the woman illicit relations with the guilty man. To get a photograph of the girl, defendant went to a photographer Topic 6. Doing an Act Prohibited by Statute Action upon Stat 529. Sir JOHN COMYNS. Digest of the Laws of England. ute," (F), 1762, 1st Amer. ed., Vol. I, p. 453.) If by statute a penalty be expressly allotted to the party grieved, he alone may sue for it, without saying "qui tam," &c. . . . So, if it do not give any certain penalty, but damages generally to the party grieved. . . . So, if a statute provide a remedy for the party grieved, though it do not give any express penalty or forfeiture, he may have an action upon the statute. . . . So, in every case where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law. . . . 530. HAYES v. MICHIGAN CENTRAL RAILROAD COMPANY SUPREME COURT OF THE UNITED STATES. 1883 111 U. S. 228 THIS action was brought by the plaintiff in error to recover damages for personal injuries alleged to have been caused by the who had taken her picture. The photographer had also taken a picture of Rose Ball, the plaintiff; and by mistake the photographer gave the photograph of the plaintiff, which was published by the defendant as that of Pearl M. Ball, in connection with the account. The account being libellous per se, is the defendant responsible? (1909, Ball v. Evening American Pub. Co., 237 III. 592, 86 N. E. 1097.) NOTES: "Action for libel where defendant has used a fictitious name." (A. L. Reg, LVIII, 166.) "Libel: newspapers: liability of editor." (C. L. R., VI, 538.) "Application to plaintiff: name used by mistake." (H. L. R., VII, 187; XIV, 198-199.) "Newspaper: liability of managing editor for libel unknown to him." (H. L. R., IX, 543.) "Libraries: circulation of libel without knowledge thereof." (H. L. R., XIV, 304, VIII, 113.) "Negligent publication." (H. L. R., XIV, 304.) "Statement made libellous by facts unknown to defendant." (H. L. R., XV, 865.) "Acts and words actionable; photographs of wrong person published in connection with sensational article." (H. L. R., XX, 240.) "Libel without intent." (H. L. R., XXIII, 218.) ESSAYS: Charles Noble Gregory, "Some Aspects of the Law of Libel, Applicable to Newsdealers." (A. L. Reg., XXVI, 377.) COPYRIGHT and PATENT-RIGHT: Is a person responsible per se for an act which amounts to an infringement of Copyright or Patent? (1908, Mansell v. Valley Printing Co., 1 Ch. 567; 2 Ch. 441, stated ante, note to No. 195, p. 404.) J. M. Laine, "Infringement of Patents by Intention." (L. Q. R., XVII, negligence of the defendant in error. After the evidence in the cause had been closed, the Court directed the jury to return a verdict for the defendant. A bill of exceptions to that ruling embodied all the circumstances material to the case, and presented the question, upon this writ of error, whether there was sufficient evidence to entitle the plaintiff below to have the issues submitted to the determination of the jury. The tracks in question were situated for a considerable distance in Chicago, including the place where the injury complained of was received, on the lake shore [alongside Grant Park (or Lake Front Park), between Michigan Ave. and Lake Michigan, near Twelfth St.]. . . . The right of way for these tracks was granted to the company by the city of Chicago over public grounds, by an ordinance of the Common Council, dated June 14th, 1852, the 6th section of which was as follows: ... SEC. 6. The said company shall erect and maintain on the western or inner line of the ground pointed out for its main track on the lake shore, as the same herein before defined, such suitable walls, fences, or other sufficient works as will prevent animals from straying upon or obstructing its tracks and secure persons and property from danger. . . From Park Row, at the south end of the park, running north a short distance, the railroad company, in 1872, had erected on the west line of its right of way a five-board fence, the north end of which at the time of the injury to the plaintiff was broken down. The rest of it was in good order. The park was public ground, free to all, and frequented by children and others as a place of resort for recreation, especially on Sundays. Not far from the south end, and about opposite the end of the fence, was a band-house for free open-air concerts. The plaintiff was a boy between eight and nine years of age, bright and well grown, but deaf and dumb. His parents were laboring people, living, at the time of the accident, about four blocks west of Lake Park. Across the street from where they lived was a vacant lot where children in the neighborhood frequently played. On Sunday afternoon, March 17th, 1878, St. Patrick's day, the plaintiff, in charge of a brother about two years older, went to this vacant lot, with the permission of his father, to play; while playing there a procession celebrating the day passed by, and the plaintiff, with other boys, but without the observation of his brother, followed the procession to Michigan avenue at Twelfth street, just south of Lake Park. He and his companions then returned north to the park, in which they stopped to play. A witness, going north along and on the west side of the tracks, when at a point a considerable distance north of the end of the broken fence, saw a freight train of the defendant coming north. Turning around toward it, he saw the plaintiff on the track south of him, but north of the end of the fence; he also saw a colored boy on the ladder on the side of one of the cars of the train motioning as if he wanted the plaintifi to come along. The plaintiff started to run north beside the train, and as he did so, turned and fell, one or more wheels of the car passing over his arm. . . . Amputation of the left arm at the shoulder was rendered necessary, and constituted the injury for which damages were claimed in this suit. After the evidence in the case had been closed, the Court instructed the jury to find a verdict for the defendant, to which ruling the plaintiff excepted. Judgment was entered on the verdict and the plaintiff sued out this writ of error. Mr. A. D. Rich, Mr. George C. Fry, and Mr. J. W. Merriam for plaintiff in error submitted on their brief. There is no statute of Mr. Ashley Pond for defendant in error. the State of Illinois under which it was the duty of the Illinois Central or Michigan Central to fence the right of way at the place of the accident. It is not so claimed by the plaintiff. It is alleged that the duty exists (1) at common law, (2) by force of the ordinance of the city of Chicago granting the right of way to the Illinois Central, and not otherwise. I. The defendant is not liable at common law for failure to fence the right of way. . . . II. The defendant is not liable under the ordinance referred to in the declaration. ... The ordinance, dissociated from the agreement between the city and the company, cannot create a civil liability enforceable at common law. Mr. Justice MATTHEWS delivered the opinion of the court. He stated the facts in the foregoing language and continued: 1. It is not claimed on the part of the plaintiff in error that the railroad company was under an obligation, at common law, to fence its tracks generally, but that, at common law, the question is always whether, under the circumstances of the particular case, the railroad has been constructed or operated with such reasonable precautions for the safety of others, not in fault, as is required by the maxim "sic utere tuo ut non alienum laedas;" that, consequently, in circumstances where the public safety requires such a precaution as a fence, to prevent danger from the ordinary operations of the railroad, to strangers not themselves in fault, the omission of it is negligence; and that it is a question of fact for a jury, whether the circumstances exist which create such a duty. This principle has been recognized and applied in cases of collisions at crossings of railroads and public highways, when injuries have occurred to persons necessarily passing upon and across railroad tracks in the use of an ordinary highway. . . . 2. The breach of the ordinance is imputed to the defendant as negligence towards the plaintiff. The ordinance cannot, we think, be treated as a mere contract between the city, as proprietor of the land over which the right of way is granted, and the railroad com |