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aud caution oi an ordinarily prudent man in con

Massachusetts Adamson v. Jarvis was adopted and duct of his own affairs.

iollowed in Lowell v. Boston, etc., Co. (23 Pick. It is clearly no right of deiendant's that the | 24, 32); and in Jacobs v. Pollard (10 Cush. 287) it plaintiff should observe this caution. Fault in that is declared that the rule of exclusion is confined respect, therefore, works the deiendant no wrong to those cases where the person claiming redress of which he can complain. Why, then, should or contribution knew or must be presumed to have fault - if fault it is - be vicariously charged upon

known that the act for which he has been mulcted one not actually participating in the transaction? in damage was unlawful. Minor v. Sharon (112 Mass. 477) merits study in

li the doctrine rests upon public policy, as inconnection with this inquiry. There was a series sisted by Pollock, Beach et al., it is to be noted of cases brought by father and children, by con

that the standard is that of a person of average sent tried together. Ezra Minor, the father of care and caution. This necessarily implies average eight children, ranging in age from a babe to ability, and in the Minor case that question was seventeen years, on arrival in Holyoke, Mass., submitted to the jury in the inquiry as to whether from Canada, applied to the deiendant for a tene- hic procured his children to be vaccinated within ment in which to house his family, and was leased a reasonable time and by a suitable person. His three rooms in a large building, two of which ignorance as to either would deieat the action of rooms were occupied as bedrooms and one used the child. Are we to be advised that not only as a kitchen. The defendant was aware that the are people of inferior ability to be at the mercy of place was infected with smallpox, but of that wrongdoers, but their helpless children as well? Minor was ignorant. Minor and each child con- And this in furtherance of a sound public policy? tracted the disease, and some of the children came Assuming that the father could, but does not, near dying, all being very sick. All sued. It was exercise the requisite caution, the argument is not held to be a clear violation of duty to rent an advanced. Upon what principle does public policy infected building to an unsuspecting family, and so thus punish innocence? the defendant was legally guilty of wronging the

We have seen that the standard is that of a perseveral plaintiffs. Was he exonerated by con- son of ordinary capacity and care, and this rule is tributory negligence? It was the duty of plaintiffs velended at length by Judge Holmes. (Common “ to take all such precautions as a man of ordinary Law, p. 108 et seq.) But many courts, impressed care and prudence would take under like circum- with the inequity of this, have adopted a modified stances," and it was for the jury to say whether rule, stated thus by Shear. & Red. (5th Ed., sec. vaccination was a proper precaution, and, if so, 72): “ Even in an action by the parent or master, whether Minor procured his children to be vac- however, it is to be remembered that he must be cinated within a reasonable time and by a suitable actually in fault in order to bar his recovery on person. Of the defendant's conduct it was said the ground of his contributory fault. This branch (p. 487): “ If the defendant had invited any person of the rule has been sometimes overlooked; but it to enter his tenement, knowing that there was a has been well pointed out and eniorced in later dangerous obstruction or pitfall in it, he would be cases, especially in Pennsylvania. Where a parent liable; the negligence was no less gross because or guardian has done all which can reasonably be the danger was a secret one which could not be expected of one in his circumstances, he is not detected by inspection or examination." On what debarred from recovery by the mere fact that he valid reasoning could a court of justice refuse to has not thrown as many restraints around his make such a wretch compensate that babe for the child for its protection as would be reasonably injury his avarice had wrought? If, as Bishop expected from parents having more means at their says (and the Mass. court, Parker v. Adams, 12 command. Thus, a poor woman earning her daily Met. 415, 417), the father was a wrongdoer, the bread is not necessarily in fault because she does infant was not. The law punishes only those in not restrain her child from wandering in the street. fact guilty. In Merryweather v. Nixan (8 T. R. In these and all similar cases all the circumstances 186) it was held that, where a number of persons are to be taken into account; and the question to invaded and carried off another's property, and

be determined is whether the plaintiff took as one of the wrongdoers had been compelled by much care of his child as reasonably prudent perexecution on judgment to pay therefor, that he sons of the same class and with the same means could not enforce contribution from the others. ordinarily do." It will be observed that this lanFor some time it was contended that this rule guage is applied to those cases in which the parapplied to all, whether constructively or actually ents or master sues for injury to his interests by guilty; but that question was set to rest by Adam- reason of the hurt to the child, and it is the plainson v. Jarvis (4 Bingh. 72 (Common Pleasl), fol- tiff's own negligence of which the authors speak. lowed by Betts v. Gibbins (2 Ad. & El. 57 (King's Nothing could more aptly illustrate the confusion Bench]). See also, Nooley v. Batte (2 Car. & P. and inconsistency of the courts, for in all other 417), and for full discussion of the rule, Palmer v. relations the care of the ordinary person is the Wick Steam Ship Co. (6 Rep. 245 [18941); and in test. For instance, it is held that an inexperi

ence as a man.



enced woman is held to the same care and prud- (125 Mass. 487, 489), citing and following Parsons

But here are contrary authorities. v. Winchell (5 Cush. 592), said: “If there was any In Fox v. Railway (118 Cal. 55 (1897]) the court, negligence in the agents, Barber and Sleeper, for aíter reviewing the authorities and the reasoning which they could be held liable, their principal, of them at some length, quotes approvingly from the society, would be responsible, not as if the Patterson's Railway Accident Law (sec. 81): “It negligence had been its own, but because the law has been held that poor parents of infant children made it answerable for the acts of its agents. Such are not contributorily negligent if they do not negligence would be neither in fact nor in legal prevent their infant children from straying into intendment the joint act of the principal and the the public streets or upon the lines of highways. agents; and, therefore, could not be jointly sued." The judgments in those cases seem to liave been | That is to say, when one, through an agent, greatly influenced by the sentimental reflections invades the rights of another, the

act is of the judges upon the poverty of the plaintiffs and neither in fact in legal intendment the their consequent inability to employ servants to joint act of both, but the principal is the watch their children, and the hardship of requir- mere guarantor of the good conduct of his ing them to keep those children within doors when agent, and so cannot be sued with him; but the they could not safely go abroad; but those learned infant whose father has committed no wrong, injudges failed to give due weight to the consider- vaded no one's right, is in that very court so idenation that the railway was not responsible for the tified with the father that his act is that of the acts of the parents in bringing the children into child. “The result of which reasoning is, that the world, nor for that degree of misfortune which for a girl to obey the law and submit to her retained those parents in a condition of more or father's control, doing what every minor ought, less want."

is that reprehensible contributory negligence In 1663, in Manby v. Scott (1 Mod. 132), Hyde, which will require a court to refuse her suit for J., said: “If a man be taken in execution and lie the redress of a wrong.” (Bish. Non-Contract in prison for debt, neither the plaintiff at whose Law, p. 259.) “ And it is submitted that both on suit he was arrested nor the sheriff who took him principle and according to the latest authority of is bound to give him meat, drink or clothes; but the highest tribunals in both countries such doche must live on his own on the charity of trine is wrong. (Pollock on Torts, pp. 586-587.) others; and is no man will relieve him, let him die Where the wife is wrongfully injured by a third in the name of God, says the law; and so say I.” person to such extent as to impair or destroy

Despite the copious quotations of scripture of ability to discharge her wifely duties, the husband this judge, who thus garnished and illuminated is injured thereby. The fact that the wife too, the opinion from which quotation above is taken, may be entitled to an action for damages belongmodern judgment deems his expressed sentimenting to her alone is, of course, immaterial to inas emanating from the devil or a very bad heart; quiry as to the husband's rights. He can only but he was humane as compared with this modern complain of a wrongdoer whose tort has affected

He at least spoke of men whose improvi- his rights injuriously and to the extent that his dence had brought calamity upon their own heads. rights as distinguished from hers and all other Even Hyde

proposed the
unchecked persons

have been affected. Denial of redress slaughter of innocence.

to him then, must rest upon imputation to him The imputation of negligence to the child orig- of her lack of care, thus identifying her with him inated in this country in the case of Hartfield v. although the law in many of the States has careRoper (21 Wend. ; 34 Am. Rep. 273 (1839]), fully separated their interests, their rights and and was quickly adopted by some nine or ten their duties. Now, if contributory negligence is States; in some for the declared reason that the made to rest upon her wrong, upon what principle parent is the agent of the child; in others because can the innocent husband be punished fo the of the legal identity of child and parent. The wrongdoing of the wife by denial to him of justice learned Beardsley, J., in Newman v. Ry. Co. (52 against the invader of his rights? The wife's conN. J. L. 446), says of that case: “In fact, this sent to her permanent injury that would make her doctrine of the imputability of the misfeasance of a charge for life upon her husband could be no the keeper of a child to the child itself is deemed justification to the wrongdoer for the simple to be a pure interpolation into the law, for until reason that over the husband's rights and duties the: case under criticism it was absolutely un- the wiie is destitute of authority to exercise conknown; nor is it sustained by legal analogies." In trol or waiver. (Holleman v. Harward, 119 N. C. Holly v. Boston Gas Light Co. it was said of a 150. 34 L. R. A. 803.) If public policy supports the child plaintiff nine years of age: Any want of rule, what valid reason can be assigned for leaving ordinary care, therefore, on his part (father's) is an innocent but wronged man outside the pale of attributable to her in the same degree as if she law ? At common law the identification of huswere wholly acting for herself.” (8 Gray, 123. band and wife afforded the technical excuse 132.) Yet that same court, in Mulchey v. Society I eagerly seized by the courts when a wrongdoer



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would be thereby exonerated - but even this ex- not exist.” The Iowa legislation had been thus cuse is lacking in many States where, as to many | construed by the Supreme Court: “Under the relations, the wife has been made by statute to statutes of this State, the wife is clothed with the occupy the position of a feme sole. Shear & Red.,

same property rights and charged with the same in their 5th ed, say (sec. 7, vol. 1), that in such liabilities as the husband. Indeed, it cannot be case her contributory negligence is immaterial in said that, as to her property, she is deprived of his action, citing Honey v. Chicago, etc., R. Co. any rights which the husband enjoys that relate (59 Fed. 423). Judge Shiras, of the Federal Dis- to his, or that any remedy is denied her, or any trict Court for Northern Iowa, one of the ablest liability removed from her which are possessed by lawyers in the land, did so hold, but this case was or imposed upon the husband. She can control reversed by the Court of Appeals of the Eighth her own property, vindicate her individual rights Circuit. It is submitted that the reasoning of and bind herself by contract, as fully and to the Judge Shiras is conclusive, but it was not deemed same extent as her husband.

* * These proso by the Appellate Court, which put its position visions, it must be admitted, completely emancilipon the ground “that the husband has permitted pate the wife from all the bonds recognized by the the wife to control her own movements and to

common law, saving those of affection and moral provide for her own safety, upon the evident as- obligation." (Spofford v. Warren, 47 Ia. 47.) sumption that she is competent to do so, should It is very clear that the Court of Appeals repreclude him from asserting, in a suit against a garded contributory negligence as an offense; that, third party for loss of service or society or for a through culpable negligence of the husband in perloss of property, that he is not responsible for her mitting the wife liberty to control her own movecontributory fault whereby the loss was ments, he had constructive complicity in it. In sioned.” (Chicago, etc., R. Co. v. Honey, 63 Fed. the forum of reason would any man undertake 39; 27 U. S. App. 196; 26 L. R. A. 42.)

vindication of either proposition? In that case, the husband had hurried ahead of

Conversely, it would seem that the wife, not his wife to procure tickets for a train due to de- permitted by her husband to go out save under part in a few minutes. Mrs. Honey reached the his care, ought to be charged with his negligence depot grounds five minutes before the scheduled in taking care of her. That is, if her husband is time for departure. The only provided way to negligent, the wrongdoer cannot be called to acreach this depot from a town of more than 5,000 - in a court of justice. And this gross inpeople was a sidewalk at grade leading across justice has been perpetrated by some some nine tracks. Anxious lest her train leave (Yahn v. City of Ottumwa, 60 Iowa, 429 (expbefore she reached it, Mrs. Honey, seeing that the lained in Nesbit v. Town of Garner, 75 Iowa, 314; way was clear, proceeded along this walk only Carlisle v. Sheldon, 38 Vt. 440; Peck v. N. Y., etc., to be intercepted by a train drawn up on the track R. Co., 50 Conn. 379; Huntoon v. Trumbull, 2 next the depot platform which, with bell ringing, McCrary C. C. 314; Pennsylvania, etc., R. Co. v. had stopped across this walk. Her train was to Goodenough, 55 N. J. Law, 577; 22 L. R. A. 460; depart from the other side of the depot. Stop-Joliet v. Seward, 86 I11. 402; Morris v. Railroad, ping, uncertain whether to wait or to go around 26 Fed. 22; Railroad v. Greenlee, 62 Tex. 344).) the obstruction, her attention to some extent di- In the Carlisle case the fact that the driver was verted by the ringing of the bell on this train's the husband was deemed of no importance, the locomotive, she neither observed that she stood decision resting on the now nearly universally in one of these tracks nor that a locomotive on exploded doctrine of Thorogood v. Bryan (8 C. that track was backing down upon her without B. 115. The Goodenough case offers a majority lookout of any kind, although she stood in full opinion based upon the proposition that the enview of the man who ordered the engine to back abling acts of New Jersey had not affected her and the operatives of the engine might have seen status as to torts at common law, and that under her had the most obvious precautions been ob- the common law she was without remedy in such served. These were the facts that induced the

In the Huntoon case it was declared that court to advise Honey that permitting his wife to the knowledge of the husband “is the knowledge go unattended was such offense that in a court of the wife ” — rather a startling proposition if of justice he must be denied compensation for the taken seriously from the standpoint of the layman. care during her life of a hopelessly crippled wife In the Yahn case — as explained in Nesbit v. from men guilty of manslaughter had her injuries | Town of Garner (75 Ia. 314, 317), it was said: resulted in death.

The doctrine that his negligence is imputed to Section 3396, McClain's Code of Iowa, declared: her does not rest upon any supposed agency of “For all civil injuries committed by a married the husband, but upon the relation of the parties. woman, damages may be recovered from her Under such circumstances the wife is under the alone, and her husband shall not be responsible care of the husband." therefore except in cases where he would be On the other hand, in Davis v. Guarnieri (45 jointly responsible with her if the marriage did | Ohio St. 470), the husband undertook to buy from



a druggist the sweet oil of almonds a harmless her accountable at the bar of eternal justice for medicine – but was given the bitter oil of almonds, his sins because she was his wife.” a virulent poison, which, the woman taking, im- In Hoag v. Railroad (111 N. Y. 199) it was mediately died. In suit by her administrator the said: “ If we assume, for purposes of the argucontributory negligence of the husband was urged ment, the negligence of the husband, who was but the trial court instructed that it was immaterial driving, yet his negligence cannot be imputed to unless the husband was the actual agent of the wife his wife.” This, too, is the settled rule in Kansas. in procuring the drug. Of this contention, the (Reading v. Telfer, 57 Kan. 798.) And in MinneSupreme Court said: * The doctrine of contribu- sota. (Finley v. R’y, 21 Minn. 471; 74 N. W. tory negligence which is invoked by the plaintiff 174.) in error, is founded upon considerations which When one or more are engaged in a joint enfind no application in logic or justice to the case at terprise, all are barred from recovery by the conbar. These are: (1) The mutual wrong and neg- tributory negligence of one of their number. ligence of the parties, and the reluctance of the ! (Abitt v. Railroad, 150 Ind. 498; 50 N. E. Rep. law to attempt an apportionment of the wrong be- 729.) But why? Tested by the principles upon tween them. (2) The principle which requires which most courts and writers rest the doctrine of every suitor who seeks to enforce his rights or contributory negligence, the rule is demonstrably redress his wrongs, to go into court with clean unsound. hands, and which will not permit him to recover This doctrine avowedly rests upon that of agency for his own wrong. (3) The policy of making and it is said that the principal is concluded by the the personal interests of parties dependent upon negligence of his servant or agent. But for what their care and prudence. * None of these reason? considerations call upon us to declare as the law When, within the scope of his authority, the of this State that the personal representative of servant, through negligence or otherwise, invades plaintiff's estate shall not recover for her death, the rights of another, the master is responsible. caused without her fault, by the negligent act of But upon what principle? It is constructively the the defendant, by reason of any friction that her act of the master who is deemed present and acthusband's act was hers."

ing through the servant, say many of the authoriThe same rule was announced in Shaw v. Craft ties. But, as above pointed out, it is held by (37 Fed. 317), Federal Court sitting in Ohio. others that the master in such case is but a guar

In Railway Co. v. Creek (130 Ind. 139) it was antor of the good conduct of the servant unless said, 143:

Their position is that, because of the actually present or the act is done pursuant to relations existing between husband and wife, and direction to do that act in that way. And this, as because of his duty to care for and protect her, if it greatly helps defendants charged with invasion a wiie places herself in her husband's care, by rid of the rights of others, is a favorite doctrine in ing in a conveyance driven or controlled by him, several quarters. (Pollock on Torts, p. 89; Campand he is guilty of negligence in the control or bell v. Portland Sugar Co., 62 Me. 552; 16 Am. management of the conveyance, his negligence is Rep. 503; Clark v. Fry, 8 Ohio St. 358; Page v. her negligence. If she is at the same time hurt Parker, 40 N. H. 47; Warax v. Railroad, 72 Fed. by the negligence of another, being herself entirely 637: Gableman v. Railroad, 82 Fed. 790; Hartsiree from fault, yet if the husband's negligence horn v. Railroad, 77 Fed. 9.) Consequently, in contributes to her injury, his negligence will be

most jurisdictions, both cannot be sued in the imputed to her and she cannot recover.

same action, and though that were permitted by We cannot sanction this doctrine. And it is

the local practice, if amount and diversity of said that until agency or identity of interest or

citizenship authorize, the case can be removed purpose appears " there is no sound principle upon

to the Federal Court as presenting a separable

controversy. which it can be held that one who is himself

Now, is it the law that one is shut out from reblameless and is yet injured by the concurrent

dress for wrong done him because one for whom wrong of two persons, shall not have his remedy

he stands surety has done wrong? against one who neglected a positive duty en

But that question is quite foreign to the one joined upon him by law.

A husband and

under discussion, ior while contributory negliwife may, undoubtedly, sustain such relations to

gence may present breach of duty by the plaineach other in a given case, that the negligence of

tiff, it need not and generally does not. But one will be imputed to the other. The mere exist

this (view)." says Pollock (p. 207), “it is subence of the marital relation, however, will not

mitted, is an unwarrantable extension of the term, have that effect. In our opinion, there would be icinded on a misapprehension of the true meanno more reason of justice in a rule that would in ing and reason of the doctrine, as if contributory cases of this character inflict upon a wife the con- negligence were sort of positive

wrong for sequences of her husband's negligence, solely and which a man is to be punished." alone because of that relationship, than to hold In negligence cases the defendant is charged







as re


because he has invaded another's rights, and to the which remains in sight anywhere is the theory extent only that his lawless wrong has inflicted that who rides in a private conveyance injury. To deny justice, as against that wrong- thereby makes the driver his agent, and is thus doer, to one committing no positive wrong, is responsible for the driver's negligence simply a maladministration of the functions of a though he has absolutely no power or right to court of justice. To extend the field of that in- control the driver. This extraordinary theory, justice by resort to a pure fiction, tolerated for which did not even appear to the hair-splitting any purpose only as offering a reason for holding judges in Thorogood v. Bryan, was invented in

to the liabilities demanded by “social Wisconsin and sustained by a process of elaborate exigency” (M. Sainctelette, quoted by Pollock, n. reasoning (Prideaux v. Mineral Point, 43 Wis. p. 89), is a still greater perversion of its duties. 513; followed, Otis v. Janesville, 47 Wis. 422; 2

In Bridge v. The Grand Junction Ry. Co. (3 M. N. W. 783); and this Wisconsin decision, in evi& W. 244) was first intimated the doctrine of dent ignorance of all decisions to the contrary, “ identity." That was 1837, and the intimation was recently followed with some similar reasoning was dictum of the Exchequer. In 1849 was deter- in Montana (Whittaker v. Helena, 14 Mont. 124: mined in the Common Pleas the case of Thorogood ! 35 Pac. 904), and in Nebraska (Omaha, etc., Ry. 1. Bryan, in which, during argument for a new Co. v. Talbot, 48 Neb. 627; 67 N. W. 569), without trial, the trial judge said: “I acted upon the dic- any reasoning whatever; which last is certainly tum of the Court of Exchequer in Bridge v. The the best method of reaching a conclusion directly Grand Junction Railway Company; if that be opposed to common sense and to the decisions of correct, I was right.” Whereupon it was solemnly twenty other courts. The notion that one is the adjudged that the master of the omnibus in which agent of another, who has not the smallest right the decedent was driving could not recover from to control or even advise him, is difficult to supthe defendant because of the contributory negli-port by any sensible argument. This theory is unigence of his driver; that the dead man,

versally rejected except in the three States gards the present defendant, is not altogether mentioned, and it must soon be abandoned even without fault. He chose his own conveyance, and there." must take the consequences of any default of the In this the learned authors were not quite exdriver whom he thought fit to trust." “ Although In Mullen v. Owosso (100 Mich. 103; 23 I al on me entertained a contrary impression | L. R. A. 693) the Supreme Court of Michigan, by upon further consideration I incline to think that a vote of three to two, placed itself with Nebraska. for this purpose the deceased must be considered | The reasoning that sustained the majority opinion as identified with the driver of the omnibus in was contention that at quite an early date that which he voluntarily became a passenger, and that court had adopted this folly as its own — a conthe negligence of the driver was the negligence of tention shown by the dissenting opinion to be the deceased.” Such nonsense from men of sense without basis in fact. is inconceivable, yet it was eagerly accepted as the “ The reason is the life of the law plain law, and hundreds of wronged people were law itself is nothing but reason; ” but, as Judge judicially robbed by application of it on both Story observed in Swift v. Tyson (16 Pet. I, 18). sides of the Atlantic. Of it, in their 5th Ed. (1898). is it will hardly be contended that the decisions of Shear. & Red. say: As already stated, the fact courts constitute laws. They are at most only that the injury was caused by the joint negligence evidence of what the laws are." It is very clear of the defendant and a mere stranger is universally that upon the subject of negligence we have a admitted to be no defense. But in the famous

large aniount of worse than worthless evidence of case of Thorogood v. Bryan, an English court this character, and that the time is at hand for an invented a new application of the old Roman doc- examination of the subject in the light of reason trine of identification, and held that a passenger and not that of “authority." in a public vehicle, though having no control over

JAMES McCabe. the driver, must be held to be so identified with

OMAHA, NEB. the vehicle as to be chargeable with any negligence on the part of its managers which coniributed to an injury inflicted upon such pas

PROPOSED BOARD OF REFEREES. senger by the negligence of a stranger. In former editions we devoted much space to the refutation THE following text of the proposed law creating of this doctrine of 'identification. But it is needless to do so any longer, since the entire doctrine ment preceding it, undoubtedly will be of interest lits, since our first edition, been exploded in every to the profession throughout the State: court, beginning in New York and ending with The object sought to be attained by the appended Pennsylvania. It was finally overruled in England proposed law is to afford a way for the clearance a few years ago. (Mills v. Armstrong. L. R. 13 of our crowded court calendars. It is thought that App. Cas. I.) The only remnant of this doctrine if attorneys recognized that by referring their

nay, the

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