at or near the defendant's at the time of the intercourse, and the affidavit contains no suggestion of any place or opportunity of his meeting Katie, October 13, 1878, or any other time. The statement is that he was working for his mother, who was a neighbor of the plaintiff, where Katie was not at the time stopping.

Katie was at the defendant's house from April 20, 1879, until three weeks of the time of her delivery, of which the defendant must necessarily have been informed, and yet he states in his affidavit that "he commenced making inquiries and investigations concerning the chastity" of Katie immediately after this action was commenced, which was August 7, 1879, and although ascertaining conduct on her part which might warrant suspicion as to her purity of character, yet he was unable to ascertain that she had had intercourse with any person whatsoever until informed by John Brennan, March 17, 1880, more than eight months after the child was born. In view of the fact that Katie was at the defendant's at the time the intercourse must necessarily have taken place, and the prior continuance and change of venue, and the story would seem to be at least suspicious. It is difficult, moreover, to comprehend what motive Brennan could have, even had he committed the offense, to voluntarily make disclosure of his own criminality and disgrace to one who was already implicated and being prosecuted, while he himself was unsuspected. Had he actually done so, and the defendant, John Crooke, had in fact been innocent of the offense, it would seem that his own sense of duty to himself, as well as the uncle of the little girl, would naturally have induced him to investigate the truth of Brennan's statement, with the view of bringing him to justice and vindicating himself. But nothing of the kind is disclosed; on the contrary, if the statement was ever made, he seems to have kept it to himself for more than fifty days, apparently, so that it would not be investigated. Besides, if Brenuan did make such disclosure, the defendant must have known that he could not compel him to testify to his own criminality, and that in all probability he would decline to do so, even if present at the trial. The defendant, apparently, did not even tell his counsel of the alleged disclosure. Had he done so he would probably have been informed that he could not compel Brennan to give such testimony, and that this court had just before held that it was no error to refuse a continuance for the absence of such a witness. Dingman v. State, 48 Wis. 485.

It was suggested by counsel on the argument that had a continuance been granted the defendant might have been able to procure the deposition of Brennan to be taken in some other State, where the fear of his own prosecution would have been less imminent. But as the giving of such testimony would at most have been a matter of favor to the defendant, he should have sought to procure it in the way suggested during the fifty-four days between the alleged disclosure and the sitting of the court. The secrecy and non-action of the defendant for so long a period in a matter so vital to his own reputation and standing as a man naturally excite grave doubt as to whether any such disclosure was ever made, although it may be that Brennan promised to testify as stated, but as the time approached his heart apparently weakened, and he made his escape. We are clearly of the opinion that there was no error in denying the application for a continuance. It is urged by counsel that there was no evidence tending to show that Katie was in the service of her father at the time of the intercourse. She was at that time only fifteen years of age. There is no pretense that the defendant had any right to her service, nor to detain her from her father against his wish. She was merely stopping with the defendant and his

wife, at their request and for their pleasure, at a time when she was not needed by her father and mother, as she had from time to time during the three years previous. There is evidence that she worked at her father's when at home. We have carefully examined the several authorities cited by the learned counsel to show that Katie was not at the time of the intercourse the servant of the plaintiff. In most of them the daughter was of age and under contract of service to another.

In Grinnell v. Wells, 7 M. & G. 1033, the daughter had permanently left her father with no intention of returning, and there was no pretense of loss of service alleged or proved. Tindal, C. J., said: "The declaration in this case contains no allegation of the loss of the service of the daughter."

In Carr v. Clarke, 2 Chitty, 260, the father had moved away from his former home, leaving his daughter, who was under age, in the service of another, and a nonsuit was granted on the ground that there was no evidence tending to show an intention to return to the father. Bayley, J., said: "The cases go upon the express ground that the relation of master and servant must exist, but the evidence may be very slight. The parties must stand in the relation of master and servant, although a temporary absence may not be sufficient to destroy that relation."

In Bartley v. Rechtmyer, 4 N. Y. 38, a step-father sought to recover on account of intercourse with his step-daughter, about nineteen years of age, and who left his house about two years before, with no intention of returning; and it was held, in an able opinion by Bronson, C. J., that "the action for seduction is founded on the loss of service, and in order to maintain it there must be an actual or constructive relation of master and servant. And in order to constitute the constructive relation the master must have the right to command the services of the female at his pleasure. The relation exists constructively between a father and his infant daughter, although the latter is actually in the service of another, provided the former has a right to reclaim her services at any time. But a step-father is not, as such, entitled to the services of his step-daughter, and is not liable for her support."

In White v. Nellis, 31 N. Y. 405, cited by counsel for the defendant, a verdict for the father was sustained. Davis, J., giving the opinion of the court, said: "This action is not maintainable upon the relation of parent and child, but solely upon that of master and servant. The latter relation existed in this case, because the debauched girl was the minor child of the plaintiff, and although living at the time of the seduction with the defendant the father might have commanded her services at pleasure." Page 407. This seems to be a correct statement of the law, and it is abundantly supported by authority. Martin v. Payne, 9 Johns. 387; Clark v. Fitch, 2 Wend. 459; Mulvehall v. Millward, 11 N. Y. 343; Furman v. Van Sise, 56 id. 435; Harnkett v. Barr, 8 Serg. & R. 36; Kennedy v. Shea, 110 Mass. 147; Blagge v. Ilsley, 127 id. 191; White v. Murtland, 71 Ill. 250; Griffiths v. Tutgen, 28 Eng. L & Eq. 371. In the case last cited the minor daughter, with the consent of her father, went and worked for the defendant a month during the absence of his wife, and for which he agreed to pay her something, and he did; but the father recovered.

In Martin v. Paine the minor daughter, with her father's consent, went to live with her uncle, for whom she worked when she pleased, under an agreement that he should pay her for her work, but there was no agreement as to her remaining any definite time; and it was held that the father could recover, notwithstanding she had no intention of returning to her father's had not the misfortune happened. Spencer,

J., said: "She was his servant de jure, though not de facto, at the time of the injury; and being his servant de jure, the defendant has done an act which has deprived the father of his daughter's services, and which he might have exacted but for that injury." P. 390. In Clark v. Fitch it was held that the father might maintain the action, although the minor daughter had left her father with his consent, and was de facto the servant of another at the time of the injury, and he had relinquished all claim to her services and incurred no actual expense, as he might at pleasure revoke such license, recall his daughter, and control her services.

In Mulvehall v. Millward the minor daughter left her father's, and was injured while in the employ of the defendant, where she remained until after her confinement and recovery, and there was no proof that her father took care of or expended any thing on her account during her sickness, but it was held that he could recover.

In Furman v. Van Sise it was held that a widowed mother could recover, although her minor daughter was at the time of the injury at work for the father of the defendant for wages, to be applied to her own use, under an agreement with the mother. The other cases cited each go to the extent of holding that the father could recover if he had not parted with the right to control his minor daughter's services.

Here the question of service was fairly submitted to the jury upon the principle of the authorities cited, and there was sufficient evidence to sustain the verdict in this respect.

It is urged by counsel for the defendant that the charge left the jury free to find punitive damages, whereas they should have been confined to compensatory damages.

In Klapfer v. Bromme, 26 Wis. 372, the right of punitory damages in such a case does not seem to have been questioned. In Bass v. Ry. it was held that punitory damages might be allowed to the plaintiff for being put out of a ladies' car by a brakeman on the defendant's train, and $2,000 assessed as such damages were sustained. 42 Wis. 654; S. C., 39 id. 636.

Edmondson v. Machell, 2 T. R. 4, was an action for loss of service by reason of an assault and battery on a servant, and the action was likened by the trial judge, in his charge to the jury, to an action by a father for deflouring his daughter, in which large damages had often been given, and that upon the whole case the jury had a right to give such damages as they thought just, considering the situation and circumstances of the defendant, and they returned a verdict of £300, which was sustained by Court of King's Bench. That case was approved by Lord Ellenborough, C. J., in Irwin v. Dearman, 11 East, 23. Tutlidge v. Wade, 3 Wils. 18, was an action by a father for loss of service of his daughter by reason of seduction, and Lord Chief Justice Wilmot, with whom the other judges concurred in refusing a new trial after verdict for the plaintiff, said: "Actions of this sort are brought for example's sake; and although the plaintiff's loss in this case may not really amount to the value of twenty shillings, yet the 'jury had done right in giving liberal damages." In that case the daughter was thirty years of age.

Bedford v. McKnowl, 3 Esp. 17, was an action by a mother for the loss of service of her daughter by reason of her seduction, tried before Lord Eldon, just before his appointment as lord chancellor, and among other things, he said: "In such case I am of opinion that the jury may take into their consideration all that she [the mother] can feel from the nature of the loss. They may look upon her as a parent losing the comfort as well as the service of her daughter, in whose virtue

she can feel no consolation, and as the parent of other children, whose morals may be corrupted by her example."

Andrews v. Askey, 8 Carr. & Payne, 7, was an action by a widow for the seduction of her daughter, and Tindal, C. J., inter alia, said: "You are not confined to the consideration of the mere loss of service, but may give some damages for the distress and anxiety of mind which the mother has felt. If you find for the plaintiff, you will take into consideration the situation in life of the parties, and say what you think, under all the circumstances of the case, is a reasonable compensation to be given to the mother." See Bennett v. Allcott, 2 Term, 167; Berry v. Da Costa, L. R., 1 C. P. 331.

*

In Ingersoll v. Jones, 5 Barb. 661, an action was brought for loss of service of an adopted daughter and servant, and on motion for a new trial the court, per Sill, J., said: "Exemplary damages may always be allowed in this kind of actions, in the discretion of the jury. * *For seduction the servant has no action. This distinction is noticed in the case cited by the defendant's counsel (24 Wend. 424; 4 Denio, 461); and the propriety of allowing exemplary damages to be recovered in an action like this is there conceded." Pp. 664-5.

Knight v. Wilcox, 18 Barb. 212, was an action for loss of service by reason of the seduction of a daughter, and it was held, per Strong, J., that "it was proper for the judge to charge that on the question of damages the jury may take into view the wounded feelings of the plaintiff, and may not only recompense him, but punish the defendant according to the aggravation of his offense. A father may recover vindictive damages for the seduction of his daughter." That case was subsequently reversed in the Court of Appeals, on the ground that there was no sufficient proof of service, but the question of punitive damages was not considered. 14 N. Y. 413. In Badgley v. Decker, 44 Barb. 577, the daughter was twenty-five years of age, and it was held that "the plaintiff is not restricted to compensatory damages; and it is not erroneous for the judge to charge the jury that, in estimating the amount, they may take into consideration the wounded feelings of the plaintiff, and the disgrace to the family." This ruling was based upon the decision in Knight v. Wilcox, 18 Barb. 212.

In Damon v. Moore, 5 Lans., 454, it was held at General Term, per Porter, J., that it was not error to sustain a verdict giving the mother exemplary as well as compensatory damages ($1,500) for loss of service on account of the defendant having debauched and carnally known her daughter and servant, whether the action was in the form of trespass or case, or brought about by seduction or force.

lu Lipe v. Eisenlerd, 32 N. Y. 229, the daughter was twenty-nine years of age, and the father obtained a verdict of $1,000, and the judgment thereon was affirmed at General Term, and in the Court of Appeals, where it was held that "the plaintiff is not limited in his recovery to mere compensatory damages, but may recover exemplary damages when he is so connected with the party as to be capable of receiving injury through her dishonor."

In Applegate v. Ruble, 2 A. K. Marshall, 128, a verdict in such case for $1,800, including exemplary damages, was sustained.

Fox v. Stevens, 13 Minn. 272, was a case of this kind, and McMillan, J., in speaking for the court, said: "In cases of willful wrongs it is settled by authority that exemplary damages may be given. * We see no reason why this case does not come within the rule." P. 277.

* *

Phalin v. Kenderding, 20 Penn. St. 354, was a case like this; and Lewis, J., speaking for the court, said:

"Although the action by a parent for the seduction of his daughter has the technical foundation in the loss of his daughter's services, it is well settled that proof of the relation of master and servant, and of the loss of service by means of the wrongful act of the defendant, has relation only to the form of the remedy, and that the action being sustained in point of form by the introduction of these technical elements, the damages may be given as a compensation to the plaintiff, not only for the loss of service, but also for all that the plaintiff can feel from the nature of the injury." Page 361. He also approvingly adopts the following language from the Supreme Court of the United States, as applicable to that case: "In actions of trespass, and all actions on the case for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon the defendant, having in view the enormity of his offense rather than the measure of compensation to the plaintiff." Id. See Day v. Woodworth, 13 How. 371.

It is true there are but few reported cases where the jury were directly charged, as here, that they might not only compensate the plaintiff, "but punish the defendant according to the aggravation of the offense;" but we are to remember that courts have almost uniformly treated the case rather as an anomaly. While the loss of service is the gist of the action, and essential to maintain it, yet we are not aware of any reported case brought by a parent where the value of such services was held to be the measure of the damages. On the contrary, the feelings of the parent, the dishonor of himself and family, and the example to his other children, have been regarded by all courts as the important elements making up substantial damages in connection with the slight pecuniary loss. The action 18 grounded in tort, and necessarily willful, and we see no reason why punitory damages may not be allowed to a parent for such injury so intentionally inflicted upon him and his family. The language used in the charge as to punitory damages may not be sufficiently guarded, but if the defendant desired to have the instruction more specific, he should have so requested. This he did not do, but seemed to think that the plaintiff had no right to exemplary or punitory damages, and accordingly requested the court to so instruct, which was contrary to our view of the law. This also disposes of the objection to the evidence as to the defendant's pecuniary circumstances.

It was just that kind of evidence that was held properly admissible in Applegate v. Ruble, supra, and a verdict for one-tenth the amount of the defendant's property was sustained. So, also, White v. Murtland, infra. Courts are liberal in such cases to allow evidence to show the circumstances and conduct of the respective parties, not only at the time of the alleged injury, but before and after, as bearing upon the question of damage. Klapfer v. Bromme, 26 Wis. 372; Hewit v. Prune, 21 Wend. 79; Davidson v. Goodall, 18 N. H. 423; White v. Murtland, 71 Ill. 250; Blagge v. Ilsley, 127 Mass. 191; Kennedy v. Shea, 110 id. 147.

The counsel insists that the court should have instructed the jury, as requested, that if the wrongful connection was the result of rape, then the action could not be maintained. The case was submitted to the jury on the theory that the plaintiff could recover only on the ground of seduction, "and without such force as would amount to rape," and then defined the meaning of rape.

In Kennedy v. Shea, supra, it was held that "it is no objection to the maintenance of an action for seducing the plaintiff's daughter that the sexual intercourse between the daughter and the defendant was had by force." See, also, Damon v. Moore, supra.

Judgment affirmed.

SUBSCRIPTIONS TO CORPORATE STOCK.

NEW YORK SUPREME COURT, FIRST DEPARTMENT, ¦ GENERAL TERM, JULY 1, 1881.

EXCELSIOR GRAIN BINDING Co. v. STAYNER.

A New York statute in relation to the formation of corporations provides, that no subscription to the capital stock of a corporation shall be received "unless at the time of making it the person subscribing shall pay ten per cent ́ of the par value of the stock subscribed for in cash." Held, that a payment by a check of the ten per cent did not satisfy the requirement of the statute so as to make the subscription binding on the subscriber.

CTION to recover the amount of a stock subscription. From a judgment for defendant plaintiff appealed. The opinion states the facts. The decision appears 58 How. Pr. 273.

Robert Ludlow Fowler, for appellant.
D. M. Porter, for respondent.

DANIELS, J. This action was prosecuted for the recovery of the sum of $5,000, being the amount of the defendant's subscription for one hundred shares of the capital stock of the plaintiff. These shares were of the par value of $50 each, and the subscription by which the defendant agreed to take them was made before the company was completely organized. The company was incorporated under the authority of chapter 611 of the Laws of 1875. The certificate required for that purpose was filed, and the persons making it were empowered to open books for subscriptions to the capital stock, as that has been provided for by section 4 of this act. And the subscription made by the defendant was taken in the course of the proceedings for that purpose so authorized. But neither at the time when the subscription was made, nor at any time after that, did he pay to the commissioners any part of the amount for which the stock was afterward to be issued to him. All that was done was to subscribe for the stock and deliver his check for ten per cent of the amount of the subscription. After the company was organized the board of directors declared the subscriptions to the capital stock to be due and payable, and because of a failure to pay on the part of the defendant this action was brought against him for the recovery of the amount. It was resisted chiefly because of the omission of the defendant to make the payment which the statute has required for the purpose of constituting a complete subscription to the stock of such a corporation. The provision of the act upon this subject is, that the commissioners shall proceed to open books for subscriptions to the capital stock of such corporations, but no subscription shall be received unless at the time of making it the person so subscribing shall pay to said commissioners ten per cent of the par value of the stock subscribed for in cash. Laws 1875, 756, § 5.

The court at the trial held that this requirement had not been observed; that the execution and delivery of the subscriber's check for the ten per cent was not a payment of the amount of it in cash, and for that reason the subscription was ineffectual, and he never became liable upon it. Before the check was presented for payment it was countermanded by the defendant, and nothing, in fact, was ever received, either by the commissioners or the company itself, on this subscription. The provision contained in this act declaring how the payment shall be made for the purpose of completing the subscription is practically the same as that contained in the statute relating to the formation of limited partnerships. There the contribution made to the capital by the special partner is required to be paid in cash; and in the case of Durant v. Abendroth, 69 N. Y. 148, it was held that a delivery of a check was

not a compliance with what the law required to be done for the purpose of forming such a partnership. And as the act under which the plaintiff was incorporated has been enacted upon this subject in terms practically identical in their effect, this decision must be accepted as controlling in this case.

A different view of the effect of a check seems to have been taken in the case of Thorp v. Woodhull, 1 Sandf. Ch. 411, but as this authority is subordinate to that pronouncing the judgment in the preceding case, it cannot properly be followed in the determination of this appeal. As the language employed in the enactment of this statute has been construed, it can be satisfied only by a payment in cash or its actual equivalent. The object of the law in making this requirement was to prevent the organization of corporations upon mere paper capital, and the security of persons dealing with them requires that such organization should not be permitted. If a check could be received as a compliance with what the law has required on this subject from one person it could be from all; and the consequences of such a construction would be that a corporation might be organized without receiving a single cent of actual capital. That would induce the existence of fraudulent corporations, which it must have been the object of the Legislature by means of this provision to prevent. It is a wholesome and proper restraint, and should by observed and enforced according to the fair import of the terms by which it has been created. In no proper sense of these terms can the unpaid or uncertified check of the subscriber be accepted or regarded as cash. And for that reason the provision contained in this statute was not complied with at the time when the defendant's subscription was made. A similar provision is contained in the general railroad laws of the State. 2 R. S. (5th ed.) 669, § 4. And in the case of Beach v. Smith, 28 Barb. 254, it was intimated that the ten per cent required to be paid at the time of the subscription might be received in a check or sight draft. But whether it could or not, was a point not presented by the case for the determination of the court, and for that reason what was said upon this subject cannot be accepted as authority. In that case, as well as the case of the Ogdensburg R. R. Co. v. Davis, mentioned in the opinion, the amount required to render the subscription valid was in point of fact finally and actually paid, and while this was not a formal compliance with what the statute had required, it was substantially so, and the transactions were sustained because the payments had actually been made in fact. This was the view which was taken in the further consideration of the case of Beach v. Smith, in the Court of Appeals (30 N. Y. 116), and for that reason the judgment of the Supreme Court was there affirmed. No binding authority has been found, allowing the payment required by the statute on such a subscription to be dispensed with. It must be made either in cash or its equivalent actually passing into the hands of the commissioners. Neither was done in this case, and therefore what the statute has declared to be necessary was not in this instance observed.

Because of this failure no lawful subscription was made by the defendant for the stock of this corporation. The terms of the statute are clear and explicit that no subscription shall be received by the commissioners unless at the time of making it the person so subscribing shall pay to them teu per cent of the par value of the stock subscribed for, in cash. This was a clear prohibition which they had no power to evade. They could receive the subscription in no other mauner, and if the payment in cash was not made they were prohibited from permitting the party to become a subscriber. The language used upon this subject is so clear as to be incapable of misunderstanding. It was the intention of the Legislature by means of it to ren

der the requisite payment an indispensable condition to the validity of the subscription. If that should not be made, they could not allow the person proposing to take the stock to become a subscriber for it; and if they did so in contravention of the clear restraint of the statute, the subscriber could acquire no right to the stock, neither could the commissioners or the corporation enforce the formal terms of a contract made for the payment of its price. The principle is a general one that a contract which is repugnant to or contravenes the terms of a statute of the State is unlawful and cannot be enforced. Barton v. Port Jackson, etc.. Plankroad Co., 17 Barb. 397; Seneca Co. Bank v. Lamb. 26 id. 595-601.

A provision of a somewhat similar nature, though not as restricted in its expression as this, was considered in the case of the Union Turnpike Road v. Jenkins, 1 Caine, 381, and it was there held by the Supreme Court, the chief justice dissenting, that the failure to pay the percentage required, upon the subscription, would not prevent the maintenance of an action afterward for its recovery. But this case was taken to the Court of Errors, and the decision made in it was reversed, because of the omission to pay the amount required to be received by the commissioners at the time when the subscription for the stock was made (Caine's Cases in Error, 86), and the doctrine of this case appears to have met the approval of the court afterward, deciding those of President, etc., v. Hurtin, 9 Johns. 217; and President, etc., v. McKean, 11 id. 98. In Rensselaer, etc., Co. v. Barton, reported in a note to the case of Lake Ontario, etc., R. Co. v. Mason, 16 N. Y. 451, 457, the correctness of these decisions was drawn in question, but they were neither overruled nor substantially impaired as authority. In the principal case to which the note has been appended the validity of such a subscription was not presented for decision, for it did not depend upon the similar provision made upon this subject by section 4 of the act providing for the incorporation of railroad companies. The subscription forming the subject of that controversy was made under a preceding section of the act, and it was so held, which did not render it in terms dependent upon an accompanying payment of any amount in cash. After these two decisions were made, the validity of a stock subscription under section 4 of the act providing for the formation of railroad corporations was further considered by the Court of Appeals. Black River, etc., Co. v. Clarke, 25 N. Y. 208. The language then construed was in its effect similar to that employed in the act under the authority of which the subscription of the defendant was taken, and in the reference made to it, in the opinion of the court, it was said "that the intent of this section doubtless was, that no subscription should be valid until ten per cent was paid thereon, and not that it should be invalid if a short interval occurred between the actual subscription and the payment of the money. The subscription and the payment of the ten per cent must both concur to make a valid subscription. The subscription one day, with payment the next, would satisfy the statute, and so would actual payment at any period after subscription with intent to effectuate and complete the subscription. The writing of the name in the subscription book should be deemed but part of the transaction and provisional or conditional till the ten per cent is paid. Id. 210. A similar view was expressed in one of the opinions delivered in Beach v. Smith, supra. It was there stated "that the statute under which the subscription in question is made not only requires ten per cent to be paid, but it forbids the subscription to be received without such payment. It seems to me that a subscription taken in violation of this provision is not binding." These authorities plainly sanction the conclusion reached by the Court of Errors in the case of Union Turnpike Co.

v. Jenkins, and that has been further very materially fortified by a similar decision in the State of Pennsylvania. Hibernia Turnpike Co. v. Henderson, 8 Serg. & R. 219. The act in that case required a payment of five per cent upon the price of the stock to render the subscription a compliance with its provisions, and because of a failure to pay the amount the subscription itself was held to be void. A different conclusion was reached in Henry v. Vermillion, etc., R. Co., 17 Ohio, 187.

That was a creditor's suit to enforce the payment of a subscription for the stock of the company, and in deciding it this point received no extended consideration, either upon principle or authority, but it was disposed of as a subject meriting very little attention in the case. The same observations are applicable to a like decision in the case of Vicksburgh, etc., R. Co. v. McKean, 12 La. Ann. 638. And for these reasons these cases should not be allowed to exercise any controlling authority over the disposition of the present controversy. The cases of McFarlan v. Triton Ins. Co., 4 Den. 392, and Booth v. Cleveland, etc., Co., 74 N. Y. 15, have no direct or necessary application to the point in controversy, and need not therefore be specially considered. The authorities having a material bearing upon this point are so well sustained by the terms and theory of the statute itself as to require them to be followed, although in doing so the cases cited from the reports of other States are required to be disregarded. As the statute must be construed, no binding subscription was made by the defendant for the stock of the company, because of his failure to make the payment mentioned in the statute before the subscription itself could be received by the commissioners. What was done was entirely ineffectual, and for that reason it was properly held at the trial that the action could not be maintained.

The judgment, for the reasons already assigned, should therefore be affirmed, with costs.

NEGLIGENCE IN SETTING FIRES.

MINNESOTA SUPREME COURT, JULY 15, 1881.

KIPPNER V. BIEBL.

Defendant set a fire in his stubble field. Before doing so he plowed three times around the field. At night he, as he supposed, extinguished the fire. He did not do so, but unknown to him, the fire smouldered in a slough and revived, and two days afterward extended to plaintiff's premises two miles away, and burned property of plaintiff. No agency intervened to spread the fire except the wind, which changed its direction, with some increase in force. Held, that a verdict for plaintiff in an action against defendant for the loss of the property burned was proper.

A

CTION to recover the value of property alleged to have been burned by defendant's negligence. The opinion states the case, From an order denying a new trial, after verdict for plaintiff, defendant appealed. B. F. Webber, for respondent. John Lind, for appellant.

DICKINSON, J. This cause, tried before the court below with a jury, comes to this court upon an appeal from an order refusing a new trial. The action is for negligence, the complaint alleging that the defendant intentionally and negligently kindled a fire upon certain lands, and so negligently and carelessly watched and tended the fire that it extended to the plaintiff's land, there destroying certain personal property, the value of which is sought to be recovered. The answer admits the kindling of a fire by the defendant, but puts in issue the charge of negligence, and avers that the fire was extinguished without having caused any damage.

It appears from the evidence that a fire was set by the defendant in his stubble field in the afternoon of October third. There was evidence on the part of the defendant relative to the precautions taken by him to prevent the spreading of the fire, he testifying that before setting the fire he plowed three furrows around the field intended to be burned. By the testimony of the defendant it appeared that the fire "jumped "this strip of plowed land, and spread over the adjacent lands; but the evidence on the part of the defendant also tended to show that he extinguished the fire that night (October 3d) before it had communicated to plaintiff's premises, which were nearly two miles from the place of setting the fire. On the other hand, the evidence on the part of the plaintiff tended to prove that the fire set by the defendant on the third of October was not extinguished, but on the same day extended to a slough situated between the land of the plaintiff and that of the defendant, and continued to smoulder and burn in the dry soil of the slough until the morning of the fifth of October, when it spread across the adjacent grass land to the premises of the plaintiff, and destroyed his property about noon of that day.

Upon the trial the defendant, being upon the stand as a witness in his own behalf, was asked by his counsel this question: "After doing what you have sworn you did in extinguishing the fire, did you or did you not think it safe?" The objection being made that this was immaterial, irrelevant, and incompetent, the court sustained the objection. The ruling was correct. The only issue to which this evidence could have been directed was that of negligence in the care or control of the fire. The thought or belief of the defendant, entertained by him at the time of the fire, as to whether it was safe or not, was no measure or test of his carefulness or negligence. Vindictive damages were not claimed, and his belief was immaterial. After the case on the part of the defendant had shown the precautions taken by him by plowing to prevent the spread of the fire, as above stated, a witness was called on the part of the plaintiff, who testified that he had been a farmer fourteen years; that he knew the dry condition of the grass at the time of the fire; that he saw the fire on the third of October; that it was very dry, and a very strong wind blowing; that he had had some experience in prairie fires. He was then asked this question on the part of the plaintiff: "On such a day as that when this fire was started, on the third of October, how many feet in width in plowing do you think would be necessary to stop a fire on stubble land?” This was objected to as being incompetent, irrelevant, and immaterial. The objection was overruled, and the witness answered: "On such a day as that was it would be from thirteen to fifteen feet." This was not error. A material question of fact for the determination of the jury was whether the precautions taken by the defendant to prevent the spreading of the fire were such as common prudence required. This would depend upon the existing conditions in respect to the wind, and the dryness of the vegetation upon the ground, with which the witness was acquainted, and upon the fact as to how far, under such conditions, a fire in the stubble might be carried in the air, or "jump," as it is expressively termed. As to this latter fact we think it is not one of common knowledge, concerning which it could be presumed that the jury could form a judgment as well as a witness, who, from actual experience, had become capable of judging with some degree of accuracy. We cannot assume that the jurors were all farmers, or that they were possessed of knowledge or experience upon the subject. The law is thus well expressed in 2 Taylor on Ev. 1275: "It may be laid down as a general rule that the opinion of a witness possessing peculiar skill is admissible whenever the subject of inquiry is such that inexperienced per