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aud caution of an ordinarily prudent man in conduct of his own affairs.

It is clearly no right of defendant's that the plaintiff should observe this caution. Fault in that respect, therefore, works the defendant no wrong of which he can complain. Why, then, should fault if fault it is be vicariously charged upon one not actually participating in the transaction? Minor v. Sharon (112 Mass. 477) merits study in connection with this inquiry. There was a series of cases brought by father and children, by consent tried together. Ezra Minor, the father of eight children, ranging in age from a babe to seventeen years, on arrival in Holyoke, Mass., from Canada, applied to the defendant for a tenement in which to house his family, and was leased three rooms in a large building, two of which rooms were occupied as bedrooms and one used as a kitchen. The defendant was aware that the place was infected with smallpox, but of that Minor was ignorant. Minor and each child contracted the disease, and some of the children came near dying, all being very sick. All sued. It was held to be a clear violation of duty to rent an infected building to an unsuspecting family, and so the defendant was legally guilty of wronging the several plaintiffs. Was he exonerated by contributory negligence? It was the duty of plaintiffs "to take all such precautions as a man of ordinary care and prudence would take under like circumstances," and it was for the jury to say whether vaccination was a proper precaution, and, if so, whether Minor procured his children to be vaccinated within a reasonable time and by a suitable person. Of the defendant's conduct it was said (p. 487): "If the defendant had invited any person to enter his tenement, knowing that there was a dangerous obstruction or pitfall in it, he would be liable; the negligence was no less gross because the danger was a secret one which could not be detected by inspection or examination." On what valid reasoning could a court of justice refuse to make such a wretch compensate that babe for the injury his avarice had wrought? If, as Bishop says (and the Mass. court, Parker v. Adams, 12 Met. 415, 417), the father was a wrongdoer, the infant was not. The law punishes only those in fact guilty. In Merryweather v. Nixan (8 T. R. 186) it was held that, where a number of persons invaded and carried off another's property, and one of the wrongdoers had been compelled by execution on judgment to pay therefor, that he could not enforce contribution from the others. For some time it was contended that this rule applied to all, whether constructively or actually guilty; but that question was set to rest by Adamson v. Jarvis (4 Bingh. 72 [Common Pleas]), followed by Betts v. Gibbins (2 Ad. & El. 57 [King's Bench]). See also, Nooley v. Batte (2 Car. & P. 417), and for full discussion of the rule, Palmer v. Wick Steam Ship Co. (6 Rep. 245 [1894]); and in

Massachusetts Adamson v. Jarvis was adopted and followed in Lowell v. Boston, etc., Co. (23 Pick. 24, 32); and in Jacobs v. Pollard (10 Cush. 287) it is declared that the rule of exclusion is confined to those cases where the person claiming redress or contribution knew or must be presumed to have known that the act for which he has been mulcted in damage was unlawful.

If the doctrine rests upon public policy, as insisted by Pollock, Beach et al., it is to be noted that the standard is that of a person of average care and caution. This necessarily implies average ability, and in the Minor case that question was submitted to the jury in the inquiry as to whether he procured his children to be vaccinated within a reasonable time and by a suitable person. His ignorance as to either would defeat the action of the child. Are we to be advised that not only are people of inferior ability to be at the mercy of wrongdoers, but their helpless children as well? And this in furtherance of a sound public policy?

Assuming that the father could, but does not, exercise the requisite caution, the argument is not advanced. Upon what principle does public policy thus punish innocence?

We have seen that the standard is that of a person of ordinary capacity and care, and this rule is defended at length by Judge Holmes. (Common Law, p. 108 et seq.) But many courts, impressed with the inequity of this, have adopted a modified rule, stated thus by Shear. & Red. (5th Ed., sec. 72): Even in an action by the parent or master. however, it is to be remembered that he must be actually in fault in order to bar his recovery on the ground of his contributory fault. This branch of the rule has been sometimes overlooked; but it has been well pointed out and enforced in later cases, especially in Pennsylvania. Where a parent or guardian has done all which can reasonably be expected of one in his circumstances, he is not debarred from recovery by the mere fact that he has not thrown as many restraints around his child for its protection as would be reasonably expected from parents having more means at their command. Thus, a poor woman earning her daily bread is not necessarily in fault because she does not restrain her child from wandering in the street. In these and all similar cases all the circumstances are to be taken into account; and the question to be determined is whether the plaintiff took as much care of his child as reasonably prudent persons of the same class and with the same means ordinarily do." It will be observed that this language is applied to those cases in which the parents or master sues for injury to his interests by reason of the hurt to the child, and it is the plaintiff's own negligence of which the authors speak. Nothing could more aptly illustrate the confusion and inconsistency of the courts, for in all other relations the care of the ordinary person is the For instance, it is held that an inexperi

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enced woman is held to the same care and prud- | (125 Mass. 487, 489), citing and following Parsons ence as a man. But here are contrary authorities. In Fox v. Railway (118 Cal. 55 [1897]) the court, after reviewing the authorities and the reasoning of them at some length, quotes approvingly from Patterson's Railway Accident Law (sec. 81): "It has been held that poor parents of infant children are not contributorily negligent if they do not prevent their infant children from straying into the public streets or upon the lines of highways. The judgments in those cases seem to have been greatly influenced by the sentimental reflections of the judges upon the poverty of the plaintiffs and their consequent inability to employ servants to watch their children, and the hardship of requiring them to keep those children within doors when they could not safely go abroad; but those learned judges failed to give due weight to the consideration that the railway was not responsible for the acts of the parents in bringing the children into the world, nor for that degree of misfortune which retained those parents in a condition of more or less want."

In 1663, in Manby v. Scott (1 Mod. 132), Hyde, J., said: "If a man be taken in execution and lie in prison for debt, neither the plaintiff at whose suit he was arrested nor the sheriff who took him is bound to give him meat, drink or clothes; but he must live on his own or on the charity of others; and if no man will relieve him, let him die in the name of God, says the law; and so say I." Despite the copious quotations of scripture of this judge, who thus garnished and illuminated the opinion from which quotation above is taken, modern judgment deems his expressed sentiment as emanating from the devil or a very bad heart; but he was humane as compared with this modern court. He at least spoke of men whose improvidence had brought calamity upon their own heads. Even Hyde never proposed the unchecked slaughter of innocence.

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The imputation of negligence to the child originated in this country in the case of Hartfield v. Roper (21 Wend. ; 34 Am. Rep. 273 [1839]), and was quickly adopted by some nine or ten States; in some for the declared reason that the parent is the agent of the child; in others because of the legal identity of child and parent. The learned Beardsley, J., in Newman v. Ry. Co. (52 N. J. L. 446), says of that case: In fact, this doctrine of the imputability of the misfeasance of the keeper of a child to the child itself is deemed to be a pure interpolation into the law, for until the case under criticism it was absolutely unknown; nor is it sustained by legal analogies." In Holly v. Boston Gas Light Co. it was said of a child plaintiff nine years of age: "Any want of ordinary care, therefore, on his part (father's) is attributable to her in the same degree as if she were wholly acting for herself." (8 Gray, 123. 132.) Yet that same court, in Mulchey v. Society

mere

v. Winchell (5 Cush. 592), said: "If there was any negligence in the agents, Barber and Sleeper, for which they could be held liable, their principal, the society, would be responsible, not as if the negligence had been its own, but because the law made it answerable for the acts of its agents. Such negligence would be neither in fact nor in legal intendment the joint act of the principal and the agents; and, therefore, could not be jointly sued." That is to say, when one, through an agent, invades the rights of another, the act is neither in fact nor in legal intendment the joint act of both, but the principal is the guarantor of the good conduct of his agent, and so cannot be sued with him; but the infant whose father has committed no wrong, invaded no one's right, is in that very court so identified with the father that his act is that of the child. "The result of which reasoning is, that for a girl to obey the law and submit to her father's control, doing what every minor ought, is that reprehensible contributory negligence which will require a court to refuse her suit for the redress of a wrong." (Bish. Non-Contract Law, p. 259.) "And it is submitted that both on principle and according to the latest authority of the highest tribunals in both countries" such doctrine is wrong. (Pollock on Torts, pp. 586–587.)

Where the wife is wrongfully injured by a third person to such extent as to impair or destroy ability to discharge her wifely duties, the husband is injured thereby. The fact that the wife too, may be entitled to an action for damages belonging to her alone is, of course, immaterial to inquiry as to the husband's rights. He can only complain of a wrongdoer whose tort has affected his rights injuriously and to the extent that his rights as distinguished from hers and all other persons have been affected. Denial of redress to him then, must rest upon imputation to him of her lack of care, thus identifying her with him although the law in many of the States has carefully separated their interests, their rights and their duties. Now, if contributory negligence is made to rest upon her wrong, upon what principle can the innocent husband be punished for the wrongdoing of the wife by denial to him of justice against the invader of his rights? The wife's consent to her permanent injury that would make her a charge for life upon her husband could be no justification to the wrongdoer for the simple reason that over the husband's rights and duties the wife is destitute of authority to exercise control or waiver. (Holleman v. Harward, 119 N. C. 159, 34 L. R. A. 803.) If public policy supports the rule, what valid reason can be assigned for leaving an innocent but wronged man outside the pale of law? At common law the identification of husband and wife afforded the technical excuse eagerly seized by the courts when a wrongdoer

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not exist." The Iowa legislation had been thus construed by the Supreme Court: Under the statutes of this State, the wife is clothed with the same property rights and charged with the same liabilities as the husband. Indeed, it cannot be said that, as to her property, she is deprived of any rights which the husband enjoys that relate to his, or that any remedy is denied her, or any liability removed from her which are possessed by or imposed upon the husband. She can control her own property, vindicate her individual rights and bind herself by contract, as fully and to the same extent as her husband. These provisions, it must be admitted, completely emancipate the wife from all the bonds recognized by the common law, saving those of affection and moral obligation." (Spofford v. Warren, 47 Ia. 47.)

would be thereby exonerated but even this excuse is lacking in many States where, as to many relations, the wife has been made by statute to occupy the position of a feme sole. Shear & Red., in their 5th ed, say (sec. 7, vol. 1), that in such case her contributory negligence is immaterial in his action, citing Honey v. Chicago, etc., R. Co. (59 Fed. 423). Judge Shiras, of the Federal District Court for Northern Iowa, one of the ablest lawyers in the land, did so hold, but this case was reversed by the Court of Appeals of the Eighth Circuit. It is submitted that the reasoning of Judge Shiras is conclusive, but it was not deemed so by the Appellate Court, which put its position upon the ground "that the husband has permitted the wife to control her own movements and to provide for her own safety, upon the evident assumption that she is competent to do so, should preclude him from asserting, in a suit against a third party for loss of service or society or for a loss of property, that he is not responsible for hermitting the wife liberty to control her own movecontributory fault whereby the loss was оссаsioned." (Chicago, etc., R. Co. v. Honey, 63 Fed. 39; 27 U. S. App. 196; 26 L. R. A. 42.)

In that case, the husband had hurried ahead of his wife to procure tickets for a train due to depart in a few minutes. Mrs. Honey reached the depot grounds five minutes before the scheduled time for departure. The only provided way to reach this depot from a town of more than 5,000 people was a sidewalk at grade leading across some nine tracks. Anxious lest her train leave before she reached it, Mrs. Honey, seeing that the way was clear, proceeded along this walk only to be intercepted by a train drawn up on the track next the depot platform which, with bell ringing, had stopped across this walk. Her train was to depart from the other side of the depot. Stopping, uncertain whether to wait or to go around the obstruction, her attention to some extent diverted by the ringing of the bell on this train's locomotive, she neither observed that she stood in one of these tracks nor that a locomotive on that track was backing down upon her without lookout of any kind, although she stood in full view of the man who ordered the engine to back and the operatives of the engine might have seen her had the most obvious precautions been observed. These were the facts that induced the court to advise Honey that permitting his wife to go unattended was such offense that in a court of justice he must be denied compensation for the care during her life of a hopelessly crippled wife from men guilty of manslaughter had her injuries resulted in death.

Section 3396, McClain's Code of Iowa, declared: "For all civil injuries committed by a married woman, damages may be recovered from her alone, and her husband shall not be responsible therefore except in cases where he would be jointly responsible with her if the marriage did

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It is very clear that the Court of Appeals regarded contributory negligence as an offense; that, through culpable negligence of the husband in per

ments, he had constructive complicity in it. In the forum of reason would any man undertake vindication of either proposition?

Conversely, it would seem that the wife, not permitted by her husband to go out save under his care, ought to be charged with his negligence in taking care of her. That is, if her husband is negligent, the wrongdoer cannot be called to account - in a court of justice. And this gross injustice has been perpetrated by some courts. (Yahn v. City of Ottumwa, 60 Iowa, 429 [explained in Nesbit v. Town of Garner, 75 Iowa, 314; Carlisle v. Sheldon, 38 Vt. 440; Peck v. N. Y., etc., R. Co., 50 Conn. 379; Huntoon v. Trumbull, 2 McCrary C. C. 314; Pennsylvania, etc., R. Co. v. Goodenough, 55 N. J. Law, 577; 22 L. R. A. 460; Joliet v. Seward, 86 Ill. 402; Morris v. Railroad, 26 Fed. 22; Railroad v. Greenlee, 62 Tex. 344].) In the Carlisle case the fact that the driver was the husband was deemed of no importance, the decision resting on the now nearly universally exploded doctrine of Thorogood v. Bryan (8 C. B. 115. The Goodenough case offers a majority opinion based upon the proposition that the enabling acts of New Jersey had not affected her status as to torts at common law, and that under the common law she was without remedy in such case. In the Huntoon case it was declared that the knowledge of the husband "is the knowledge of the wife" - rather a startling proposition if taken seriously from the standpoint of the layman. In the Yahn case as explained in Nesbit v. Town of Garner (75 Ia. 314, 317), it was said: The doctrine that his negligence is imputed to her does not rest upon any supposed agency of the husband, but upon the relation of the parties. Under such circumstances the wife is under the care of the husband."

On the other hand, in Davis v. Guarnieri (45 Ohio St. 470), the husband undertook to buy from

his sins because she was his wife."

In Hoag v. Railroad (111 N. Y. 199) it was said: "If we assume, for purposes of the argument, the negligence of the husband, who was driving, yet his negligence cannot be imputed to his wife." This, too, is the settled rule in Kansas. (Reading v. Telfer, 57 Kan. 798.) And in Minnesota. (Finley v. R'y, 71 Minn. 471; 74 N. W. 174.)

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, a virulent poison, which, the woman taking, immediately died. In suit by her administrator the contributory negligence of the husband was urged but the trial court instructed that it was immaterial unless the husband was the actual agent of the wife in procuring the drug. Of this contention, the Supreme Court said: "The doctrine of contributory negligence which is invoked by the plaintiff | in error, is founded upon considerations which find no application in logic or justice to the case at bar. These are: (1) The mutual wrong and negligence of the parties, and the reluctance of the law to attempt an apportionment of the wrong between them. (2) The principle which requires every suitor who seeks to enforce his rights or redress his wrongs, to go into court with clean hands, and which will not permit him to recover for his own wrong. (3) The policy of making the personal interests of parties dependent upon their care and prudence. * * None of these considerations call upon us to declare as the law of this State that the personal representative of plaintiff's estate shall not recover for her death, caused without her fault, by the negligent act of the defendant, by reason of any friction that her husband's act was hers."

The same rule was announced in Shaw v. Craft (37 Fed. 317), Federal Court sitting in Ohio.

In Railway Co. v. Creek (130 Ind. 139) it was said, 143: "Their position is that, because of the relations existing between husband and wife, and because of his duty to care for and protect her, if a wife places herself in her husband's care, by riding in a conveyance driven or controlled by him, and he is guilty of negligence in the control or management of the conveyance, his negligence is her negligence. If she is at the same time hurt by the negligence of another, being herself entirely free from fault, yet if the husband's negligence contributes to her injury, his negligence will be imputed to her and she cannot recover.

We cannot sanction this doctrine. And it is said that until agency or identity of interest or purpose appears" there is no sound principle upon which it can be held that one who is himself blameless and is yet injured by the concurrent wrong of two persons, shall not have his remedy against one who neglected a positive duty enjoined upon him by law. *** A husband and wife may, undoubtedly, sustain such relations to each other in a given case, that the negligence of one will be imputed to the other. The mere existence of the marital relation, however, will not have that effect. In our opinion, there would be no more reason of justice in a rule that would in cases of this character inflict upon a wife the consequences of her husband's negligence, solely and alone because of that relationship, than to hold

When one or more are engaged in a joint enterprise, all are barred from recovery by the contributory negligence of one of their number. (Abitt v. Railroad, 150 Ind. 498; 50 N. E. Rep. 729.) But why? Tested by the principles upon which most courts and writers rest the doctrine of contributory negligence, the rule is demonstrably unsound.

This doctrine avowedly rests upon that of agency and it is said that the principal is concluded by the negligence of his servant or agent. But for what reason?

When, within the scope of his authority, the servant, through negligence or otherwise, invades the rights of another, the master is responsible. But upon what principle? It is constructively the act of the master who is deemed present and acting through the servant, say many of the authorities. But, as above pointed out, it is held by others that the master in such case is but a guarantor of the good conduct of the servant unless actually present or the act is done pursuant to direction to do that act in that way. And this, as it greatly helps defendants charged with invasion of the rights of others, is a favorite doctrine in several quarters. (Pollock on Torts, p. 89; Campbell v. Portland Sugar Co., 62 Me. 552; 16 Am. Rep. 503; Clark v. Fry, 8 Ohio St. 358; Page v. Parker, 40 N. H. 47; Warax v. Railroad, 72 Fed. 637: Gableman v. Railroad, 82 Fed. 790; Hartshorn v. Railroad, 77 Fed. 9.) Consequently, in most jurisdictions, both cannot be sued in the same action, and though that were permitted by the local practice, if amount and diversity of citizenship authorize, the case can be removed to the Federal Court as presenting a separable controversy.

Now, is it the law that one is shut out from redress for wrong done him because one for whom he stands surety has done wrong?

But that question is quite foreign to the one under discussion, for while contributory negligence may present breach of duty by the plaintiff, it need not and generally does not. "But this (view)," says Pollock (p. 207), "it is submitted, is an unwarrantable extension of the term. icunded on a misapprehension of the true meaning and reason of the doctrine, as if contributory negligence were a sort of positive wrong for which a man is to be punished.”

In negligence cases the defendant is charged

because he has invaded another's rights, and to the extent only that his lawless wrong has inflicted injury. To deny justice, as against that wrongdoer, to one committing no positive wrong, is simply a maladministration of the functions of a court of justice. To extend the field of that injustice by resort to a pure fiction, tolerated for any purpose only as offering a reason for holding masters to the liabilities demanded by "social exigency" (M. Sainctelette, quoted by Pollock, n. p. 89), is a still greater perversion of its duties.

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which remains in sight anywhere is the theory that one who rides in a private conveyance thereby makes the driver his agent, and is thus responsible for the driver's negligence even though he has absolutely no power or right to control the driver. This extraordinary theory, which did not even appear to the hair-splitting judges in Thorogood v. Bryan, was invented in Wisconsin and sustained by a process of elaborate reasoning (Prideaux v. Mineral Point, 43 Wis. 513; followed, Otis v. Janesville, 47 Wis. 422; 2 N. W. 783); and this Wisconsin decision, in evident ignorance of all decisions to the contrary. was recently followed with some similar reasoning in Montana (Whittaker v. Helena, 14 Mont. 124: 35 Pac. 904), and in Nebraska (Omaha, etc., Ry. Co. v. Talbot, 48 Neb. 627; 67 N. W. 569), without any reasoning whatever; which last is certainly the best method of reaching a conclusion directly opposed to common sense and to the decisions of twenty other courts. The notion that one is the agent of another, who has not the smallest right to control or even advise him, is difficult to sup

versally rejected except in the three States mentioned, and it must soon be abandoned even there."

act.

In this the learned authors were not quite exIn Mullen v. Owosso (100 Mich. 103; 23 L. R. A. 693) the Supreme Court of Michigan, by a vote of three to two, placed itself with Nebraska. The reasoning that sustained the majority opinion was contention that at quite an early date that court had adopted this folly as its own—a contention shown by the dissenting opinion to be without basis in fact.

In Bridge v. The Grand Junction Ry. Co. (3 M. & W. 244) was first intimated the doctrine of "identity." That was 1837, and the intimation was dictum of the Exchequer. In 1849 was determined in the Common Pleas the case of Thorogood v. Bryan, in which, during argument for a new trial, the trial judge said: "I acted upon the dictum of the Court of Exchequer in Bridge v. The Grand Junction Railway Company; if that be correct, I was right." Whereupon it was solemnly adjudged that the master of the omnibus in which the decedent was driving could not recover from the defendant because of the contributory negli-port by any sensible argument. This theory is unigence of his driver; that the dead man, as regards the present defendant, is not altogether without fault. He chose his own conveyance, and must take the consequences of any default of the driver whom he thought fit to trust." "Although I at on me entertained a contrary impression upon further consideration I incline to think that for this purpose the deceased must be considered as identified with the driver of the omnibus in which he voluntarily became a passenger, and that the negligence of the driver was the negligence of the deceased." Such nonsense from men of sense is inconceivable, yet it was eagerly accepted as the plain law, and hundreds of wronged people were judicially robbed by application of it on both sides of the Atlantic. Of it, in their 5th Ed. (1898). Shear. & Red. say: "As already stated, the fact that the injury was caused by the joint negligence of the defendant and a mere stranger is universally admitted to be no defense. But in the famous case of Thorogood v. Bryan, an English court invented a new application of the old Roman doctrine of identification, and held that a passenger in a public vehicle, though having no control over the driver, must be held to be so identified with the vehicle as to be chargeable with any negligence on the part of its managers which contributed to an injury inflicted upon such passenger by the negligence of a stranger. In former editions we devoted much space to the refutation of this doctrine of identification.' But it is needless to do so any longer, since the entire doctrine has, since our first edition, been exploded in every court, beginning in New York and ending with Pennsylvania. It was finally overruled in England a few years ago. (Mills v. Armstrong, L. R. 13 App. Cas. 1.) The only remnant of this doctrine

The reason is the life of the law nay, the law itself is nothing but reason;" but, as Judge Story observed in Swift v. Tyson (16 Pet. 1, 18). |“ it will hardly be contended that the decisions of courts constitute laws. They are at most only evidence of what the laws are." It is very clear that upon the subject of negligence we have a large amount of worse than worthless evidence of this character, and that the time is at hand for an examination of the subject in the light of reason and not that of "authority."

OMAHA, NEB.

JAMES MCCAbe.

PROPOSED BOARD OF REFEREES.

THE

HE following text of the proposed law creating a board of referees, and the explanatory statement preceding it. undoubtedly will be of interest to the profession throughout the State:

The object sought to be attained by the appended proposed law is to afford a way for the clearance of our crowded court calendars. It is thought that if attorneys recognized that by referring their

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