454. LAMB v. STONE

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1831

11 Pick. 527

[Printed ante, Book I, as No. 133.]

455. HASTINGS v. STETSON

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1879

126 Mass. 329

TORT, in five counts, for slander, in accusing the plaintiff of the crimes of adultery and fornication. Answer, a general denial. At the trial in the Superior Court, before BACON, J., the evidence tended to show that the words complained of in the first count of the declaration were spoken by the defendant to the brother of the plaintiff in the presence of a number of persons, during an angry altercation between the brother and the defendant; That the words complained of in the second count were spoken by the defendant, to the father of the plaintiff, in a public place, in the hearing of a number of persons, during an angry altercation between the father and the defendant; and That the words complained of in the third count were spoken by the defendant, in another public place, in the hearing of a number of persons. The evidence was conflicting as to what was said by the defendants on the different occasions. There was evidence that the remarks made were repeated by some of the persons who heard them, but there was no evidence that the remarks complained of were repeated to the plaintiff, and how or when, if ever, she heard of what had been said; nor that the defendant asked or authorized in words any one to repeat the remarks he made.

The defendant asked the judge to rule that no damages were to be allowed to the plaintiff on account of statements made by others than the defendant. . . . And at the close of the charge, after discussion . by counsel, the judge instructed the jury they were not to consider the repetitions, unless they were the natural and proximate result of the slanders, and the slanders were uttered in such a way by the defendant as to authorize the repetitions. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.

H. H. Bond, for the defendant.

G. M. Stearns, for the plaintiff.

GRAY, C. J. It is too well settled, to be now questioned, that one who utters a slander is not responsible, either as on a distinct cause of action or by way of aggravation of damages of the original slander, for its voluntary and unjustifiable repetition, without his authority or

request, by others over whom he has no control, and who thereby make themselves liable to the person slandered; and that such repetition cannot be considered in law a necessary, natural, or probable consequence of the original slander. Ward v. Weeks, 4 Moore & Payne, 796; S. C. 7 Bing. 211; Tunnicliffe v. Moss, 3 Car. & K. 83; Barnett v. Allen, 1 F. & F. 125; Dixon v. Smith, 5 H. & N. 450; Parkins v. Scott, 1 H. & C. 153; Derry v. Handley, 16 L. T. N. S. 263; Stevens v. Hartwell, 11 Met. 542, 550; Terwilliger v. Wands, 17 N. Y. 54.

In the present case, there was no evidence that the defendant, in any form of words, asked or authorized any one to repeat his statements, or that those who did repeat them held any relation to him that would imply such authority. or had any legal justification for the repetition. The presiding judge, though expressly requested to rule that no damages could be recovered by the plaintiff on account of the repetition by third persons of statements made by the defendant, declined so to do, and, in the instructions given, allowed the jury to hold the defendant responsible for repetitions by such persons, and for which they would themselves be liable to the plaintiff. For this reason the Exceptions must be sustained.

456. SOUTHERN TRANSPORTATION COMPANY v. HARPER SUPREME COURT OF GEORGIA. 1903

118 Ga. 672, 45 S. E. 458

ERROR from City Court of Savannah; T. M. NORWOOD, Judge. Action by W. H. Harper, against the Southern Transportation Company. Judgment for plaintiff. Defendant brings error. Reversed. Saussey & Saussey, for plaintiff in error. Twiggs & Oliver, for defendant in error.

CANDLER, J. This was a suit for damages on account of personal injuries, in which the plaintiff obtained a verdict for $500. The case comes before this Court on exceptions to the overruling of the defendant's motion for a new trial. It appears that the plaintiff was a passenger on a steamboat of the defendant company, which plied on the Savannah River between Savannah and Augusta, and in the course of its passage it was necessary for the vessel to pass between the piers of a drawbridge situated a few miles above the city of Savannah. The petition alleged that "the pilot at the wheel of said steamer, then and there steering and piloting the same as an officer, agent, servant, and employee of said defendant company, ran the said steamer into and against a pier" of the bridge to which reference has been made. The plaintiff was at the time seated in a chair in a portion of the boat reserved for negro passengers. He testified: "I was knocked from my chair when the boat hit the bridge, and the people were pouring out.

I jumped up and twenty-five or thirty rushed over me and knocked me back in the chair. I started to get up again. Eight or ten knocked me down. All the people rushed from that side, and everybody rushed out. Being helpless, and down on the floor, the people rushed over me." There is ample evidence to warrant the jury in finding that the plaintiff's pain and suffering had been intense, and that his injuries were serious and permanent. Aside from the extract from the petition which we have already quoted, the only allegation of negligence was in the following language: "Your petitioner avers that the injuries he has sustained, as described above, are due entirely to the negligence of the said defendant, its servants, agents, and employees, in running the said steamer into and striking against the pier of said bridge." The defence relied on by the defendant company, which was substantially supported by the evidence offered in its behalf, was, in effect, that the collision between the vessel and the pier of the bridge was due to causes entirely beyond its control. . . . The answer also averred "that, if injured at all, the said plaintiff was injured by another and distinct cause" from the striking of the vessel against the pier, "to wit, by the passengers in the cabin on the lower deck with plaintiff ruthlessly, carelessly, and negligently running over and trampling upon him; that this defendant had no control of the said movements of the said passengers; and that the said injuries of the said plaintiff thus sustained are not the legal and natural result of the alleged striking of the pier of the said bridge.

1. After a careful reading of the record, we are led to the conclusion that the verdict of the jury was contrary to law and the evidence, and should have been set aside on motion for new trial. . . .

2. Independently of what has been said, we do not think that the act of the defendant company, through its employees, in permitting the vessel to collide with the pier, even if negligent, can properly be said to have been the natural and probable cause of the injuries sustained by the plaintiff. It appears from the uncontradicted evidence that in approaching the drawbridge the steamer proceeded very slowly, so as to drift into the opening between the piers. There was a fender around these piers in shape of pilings, to prevent vessels passing through from striking against the stone piers. In entering the opening, the forward part of the vessel struck against the piling, and the wind swept the boat around so as to cause her to strike the pier. It does not clearly appear just at what time the negroes became frightened and ran over the plaintiff, whether at the time that the boat ran on to the piling or after she had swung around and struck the pier. But, be that as it may, there was nothing in the act of the employees of the defendant company, conceding that they were negligent, that would naturally and ordinarily give rise to the stampeding of a crowd of passengers. They could not reasonably be required to anticipate that on account of such an occurrence a number of negroes would

become panic-stricken, and run down and trample, almost into insensibility, one of their number.

. We are aware of the great difficulty in deciding, in cases of this kind, just what is and what is not a probable and proximate cause of an injury. We refer, however, to the admirable opinion of Mr. Justice FISH in the case of Mayor of Macon v. Dykes, 103 Ga. 847, 31 S. E. 443, for an elaborate discussion of the subject. In that case probably all the Georgia cases bearing on this branch of the law are cited, and the Dykes Case itself is strong authority for what is now held. The case of Southern Ry. Co. v. Webb, 116 Ga. 152, 42 S. E. 395, is not in point, and is easily distinguishable from the case now under consideration. In the Webb Case the negligent act of the railroad company caused the plaintiff's decedent to be thrown from its train upon a track running alongside the one on which the train was, and while he was lying upon that track an engine of another railroad company ran over and killed him. It was held, in effect, that the passage of trains upon this adjoining track was an ordinary and usual occurrence, and one which should have been anticipated by the defendant; and that, as this occurrence was in the direct chain of causation with the negligent act of the defendant, it was liable therefor. In this case, however, the immediate cause of the plaintiff's injuries was his being thrown down and trampled upon by his fellow passengers, and that occurrence was not a probable result of the alleged negligence of the defendant, or one which should reasonably have been anticipated by it.

Judgment reversed. All the Justices concur.1

1 [SUB-TOPIC A. PROBLEMS:

The defendant made libellous statements of the plaintiff, in conversation with a person whom he knew to be a newspaper reporter. The person printed the statement in the newspapers. Is the defendant responsible for this repetition? (1900, Schoepflin v. Coffey, 162 N. Y. 12, 56 N. E. 502.)

The defendant kept a public baseball ground, adjoining the plaintiff's premises. Balls were often knocked over the fence, and persons came over on to the plaintiff's land to get them; and disorderly crowds collected in the neighborhood. Was the defendant responsible? (1899, Cronin v. Bloemecke, 58 N. J. Eq. 313, 43 Atl. 605.)

The plaintiff was a blacksmith and horseshoer, of good repute. He shod the horse of R. on a certain day, and shod it well. The defendant secretly loosened the shoe and drove a nail in the foot, intending to make R. believe that the plaintiff's shoeing was incompetent. R. did so believe, and ceased to patronize the plaintiff. Has the plaintiff an action? (1881, Hughes v. McDonough, 43 N. J. L. 459.)

The defendant sold laudanum to the plaintiff's wife as a beverage, knowing that it was impairing her health. The plaintiff husband in consequence suffered the loss of her society and services. Was this too remote? (1867, Hoard v. Peck, 56 Barb. 202.)

The defendant sold to the plaintiff, for use in his factory, rags containing an infection. Some of the plaintiff's employees in consequence died, others became ill, and others left, and he lost their services. Was this too remote? (1887), Dushane v. Benedict, 120 U. S. 630, 648.)

A. was shot by B. in a brawl at the saloon of C., the brawl being caused by

SUB-TOPIC B. THIRD PERSON'S ACT INTERVENING INDEPENDENTLY

458. LYNCH v. NURDIN

QUEEN'S BENCH. 1841

1 Q. B. 29

ON the trial before WILLIAMS, J., at the sittings in Middlesex, in Easter term, 1839, it appeared that on the day in question defendant's cart was in Compton Street, Soho, under the charge of his carman; that the carman went into a house, and left the horse and cart standing at the door, without any person to take care of them, for about half an hour; that the plaintiff, who was a boy under seven years of age, and several other children, were about the cart, and plaintiff, during the carman's absence, got upon it; that another boy led the horse on; and the plaintiff, who, at the time, was getting off the shaft, fell, and was run over by the wheel, and his leg was broken. The defendant's counsel contended that the learned judge ought to direct the jury that there was no evidence in support of the plaintiff's case, his own negligence having brought the mischief upon him. WILLIAMS, J., refused to withdraw the facts from the consideration of the jury, and left it to them to say, first, whether it was negligence in the defendant's servant to leave the horse and cart for half an hour, in the manner

intoxication with liquor sold by C. Is C. responsible? (1905, Judson v. Barry, 38 Wash. 37, 80 Pac. 194.)

The defendant opened a public pleasure-garden, with a brass band, fireworks, etc.; and the crowd attracted to hear and to see occupied the road so as to obstruct the passage. Was the defendant responsible? (1867, Walker v. Brewster, L. R. 5 Eq. 25.)

The defendant sold intoxicating liquor to the plaintiff's husband, who while drunk killed H., and was sentenced to imprisonment for life. Is the defendant responsible to the plaintiff for the loss of support? (1901, Homire v. Halfman, 156 Ind. 470, 60 N. E. 154.)

The defendant falsely stated to the plaintiff's employer that the plaintiff had removed from his last house in debt for the rent and refusing to pay. The employer dismissed the plaintiff. Is the defendant responsible? (1904, Speake v. Hughes, 1 K. B. 138.)

The defendant, on discharging the plaintiff, falsely recorded "neglect of duty" as the cause. By mutual agreement with other railroads, a person discharged for such cause would be refused employment by the others. The plaintiff was so refused. Is the defendant responsible? (1898, Hundly v. R. Co., 105 Ky. 162, 48 S. W. 429.)

NOTES:

Husband and wife. loss of consortium, liability of druggist furnishing morphine." (C. L. R., 1910, X, 268.)

"Recovery by husband for selling opium to wife." (H. L. R., X, 384.) "Third person defamed; suit by one suffering consequential injury." (H. L. R., XIV, 289.)

ESSAYS:

Jeremiah Smith, "Liability for Negligent Language." (H. L. R., XIV, 184.)]