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The question presented is whether an action can be maintained against the authorities of a village or municipality who have acted in good faith, without malice, in the arrest and punishment of commercial travelers. A great many authorities have been cited on this proposition, but the weight of authority, it seems to me, is against plaintiff's contention. In 34 Ark. 105, in the case of Trammell v. Town of Russellville, the Supreme Court squarely hold that such an action cannot be maintained. The court says:
"It is a universally recognized principle that one acting judicially in a matter within the scope of his jurisdiction is not liable to an action for his conduct. Judge Cooley says: 'Whenever the State confers judicial powers upon an individual, it confers them with full immunity from private suit' (Cooley, Torts, 408). In effect, the State says to the officer that those duties are confided to his judgment: that he is to exercise his judgment fully, freely, and without favor, and he may exercise it without fear; that his duties concern individuals, but they concern more especially the welfare of the State, and the peace and happiness of society; that, if he shall fail in the faithful discharge of them, he shall be called to account as a criminal, but that, in order that he may not be annoyed, disturbed, and impeded in the performance of these high functions, a dissatisfied individual shall not be suffered to call in question hi official action in a suit for damages. This is what the State, speaking by the mouth of the common law, says to the judicial officer."
This declaration is quoted with approval by Judge Cooley in his work on Torts. It seems, from the authorities, to make no difference whether the ordinance under which the arrest and punishment were made was valid or invalid. In this case, therefore, it is not necessary to determine whether the ordinance is valid or not. Cities and towns incur no liability to persons who may be injured by acts of their officers in the discharge of their duties in their public capacity. The opinion of the court. therefore, is, that the demurrer to the petition should be sustained, and the petition dismissed.
LAW AND LAWYERS IN MODERN FICTION
BY OTTO ERICKSON.
The Epic poem your lordship bade me look at, upon taking the length, breadth, height and depth of it, and trying them at home upon an exact scale of Bossu's. 'tis out, my lord, in every one of its dimensions. Admirable Connoseur! - Sterne.
The philosophy of literary criticism has within recent years undergone a great change. While all of its essential principles remain, of course, the same, its spirit, its "thinking consideration" and
its method of estimate and judgment are not what they were and happily so. The spirit of criticism to-day would not justify the "Who killed John Keats?" epigram of Byron. A contrast between the reviews of the early Scotch magazines and the work of our best critics of to-day measures the degree of this change. Too often the criticisms of those days knew no limitation other than the prejudices or idiosyncrasies of the reviewer. It was the personal method wholly. Now, our criticism, except when it deals with subject matter which is the expression of personality, is rather non-personal and based on those broad principles which underlie all great literature. Instead of the scorpion stings and viper tongues of an "Edinburgh Review," we have the no less brilliant and vigorous and infinitely more fair and just "Appreciations," "The Personal Equation" and "Obiter Dicta." Surely a commendable change in the method and spirit of literary criticism.
Likewise the day of captious criticism has gone by and books are not measured on the exact scale of a Rene le Bossu, as Sterne measured the epic. A critic who would now object to Akenside viewing "The Ganges from Alpine heights" would be a self-invited subject for ridicule, an "admirable connoisseur" who knew not the "pleasures of the imagination." And a reviewer who would seriously criticise Cervantes for giving the party at the Crescent two suppers in one evening, would probably be condemned to dine with the crosslegged host ever after. Errors like these should not come within the purview of serious criticism; they do not mar the logic of truth. The mediæval Cycles are a melange of anachronisms, but this fact in no way lessened the influence of those romances on subsequent literature and Tristram and Isolt, Launcelot and Elaine are typical for
There is not a great work of genius invulnerable in this regard. The sublimating and refining process necessary to eradicate all error would emasculate a great work. Perhaps later years have not produced a more precise or perfect work than Pater's "Marius the Epicurean," yet who would not wish that its rare delicacy were marred by some error that might give it energy and enable it to take hold of the heart and soul. Certainly the absolutely perfect is quite intolerable. Whether we agree with Schopenhauer or with the famous dictum of Leibnitz, we all rejoice that this world is not perfectly perfect. While as for its inhabitants - would not the perfect man be a very mediocre man? And as for woman but man embraces woman.
Venus had a mole on her cheek and Helen had a scar on her chin, cas amoris to Paris. The sun, all glorious, has spots on his disc and Homer slept while Pegasus ambled in the side paths. If Paderewski cannot express the full power and virility of Beethoven, he can sing with divine perfection
the romanticism of Schumann's melodies and weave with infinite grace and beauty the "airy fairy ornamentations of a Chopin sonata.
"The icily regular faultily faultless, splendid | null" is a nuisance and a bore. Kick it out. Shall we say it? Yea, verily. The "inexpressive she" has always sufficient earth to keep her a
So, let Angelo give us the bark of Charon in his Last Judgment" and Allison call droit de timbre timber duties. Let Longfellow crown life with asphodels and death with amaranth. Let Shakspeare project Galen six hundred years before his time, present the Romans with clocks and Bohemia with a sea coast. Let Socrates, if Spencer says truly, drink a hemlock toast to his dear belamie, and Dido, per Morgla, sigh for a cockney dandiprat. These and countless others known to every reader, are little things. Faults that become their authors whom we love because of them.
It is in this same spirit, mingling with one of intellectual recreation and amusement, that the writer points out a few of the many mistakes, often very ludicrous, into which nearly all authors invariably fall when they invoke "the majesty of the law." Of course technical perfection in any science or art is impossible to the lay mind. Though Hall Caine had twenty experts pass on "The Christain" yet his picture of St. Martha's Hospital provoked a storm of adverse criticism from the medical press and the nursing profession in England. Wilkie Collins' staff of consulting doctors could not save him from an occasional medical mistake.
But there is so much romance, so much tragedy, in the law and its web
"Seems fair and glitters in the sun,"
the author or other victim is wound in its toils before he dreams of danger or mistakes. The most famous of legal novels is Warren's "Ten Thousand a Year," and though it was written by a very distinguished lawyer and law writer, it contains a very palpable legal error. In the celebrated trial which was to decide whether Mr. Tittlebat Titmouse was to become a gentleman with ten thousand a year or whether his sublime soul should be crucified in a linen draper's shop, a deed is produced and offered in evidence which would have given the grinning jackanapes his quietus and rendered his brilliant array of counsel immediately hors de combat. What happens? The learned counsel, Mr. Subtle, rises (it is a pregnant moment when counsel rises) and objects to the deed because of an erasure which had been made by a clerk when he copied it. The honorable attorney-general argues for the sufficiency of the deed, all the time talking good law, though contra spem we are told. Lord Widdrington, after consultation with brother Grayley, solemnly sustains Mr. Subtle and declines to allow the deed. It was
never the law that an erasure vitiated a deed if made when engrossed and no authority from Coke down ever held so. And yet Mr. Samuel Warren, Q. C., not only makes his blunder but commits it in the interest of a Tittlebat Titmouse.
Dickens was prolific of lawyers and lawsuits, but while he would send boys out to hoe vegetables in winter he never was guilty of contumacious contempt of court. His splendid isolation in this respect is due in part to his service as an attorney's clerk and also to his reportorial manner. He described what he saw. Nevertheless there is generally an element of caricature in his descriptions of lawyers and court scenes. The late lamented | Arthur Lockwood, Q. C., declared the speech of Sergeant Buzfuz in the cause celebre of Bardell v. Pickwick to be the greatest in legal annals. Yet it is, as is much of the art of Dickens, a grotesque exaggeration. But after all if Dickens did sometimes forget fine distinctions, if he sent queen's counsel into common-law courts with blue bags, where is the citizen in the Republic of Letters who can go into court with clean hands and present information against him?
Anthony Trollope and Charles Reade both studied law, yet in "Orley Farm” and “Griffith Gaunt" each respectively ignores every rule of evidence. If the giants of other days were not immune, how is it with our moderns? Take “A Modern Instance." Surely William Dean Howells, the American Isaiah and Messiah of Realism will describe a thing as it is. What do we find? Probably nowhere in fiction has a court's proceedings been so fustianized and made ridiculous as in the divorce case of Hubbard v. Hubbard, reported by Mr. Howells in "A Modern Instance." It is as exaggeratedly unreal and melodramic as anything Mrs Southworth, Mrs. Henry Wood, or Augusta J. Evans Wilson ever did. Indeed it is if anything more bathetic than the trial scene in the latter's "At the Mercy of Tiberius." Mr. Howells' travesty is committed in Tecumseh, Indiana, in 1879. Bartley J. Hubbard has sued his wife Marcia G. Hubbard for divorce. The legal proceedings on his part are all regular, there is no appearance for the wife and a default judgment is taken. On the day the decree is granted and is entered by the clerk, Squire Gaylord, of Equity, Equity county, Maine, rushes into the court room and without every having legally appeared in the action moves to open the default, and thereupon, as if issue had been actually joined, delivers a ranting harangue until he collapses in the throes of his own paroxysm. And upon this wild and frenzied delirium the whole matter becomes res adjudicata and Bartley Hubbard is driven into exile. Not a single legal and necessary formality is complied with. Of course such a thing never happened in Indiana or anywhere else. As if realizing the literary crime he was about to commit, Mr. Howells, in a sort of anticipatory apology,
naively declares that "the administration of justice is everywhere informal with us." There is a mocking devil in that unconscious sarcasm. Only litigants grown gray in the shadow of a court house fully realize how rigidly and eternally formal is the administration of justice.
Nevertheless it is a pleasure to know that Mr. Howells frequently departs widely from his own pet theory of fiction and that Squire Gaylord, of Equity, Equity county, Maine, suffered death (by paralysis) for his flagrant contempt of court.
Then there is that delightful cosmopolite, albeit an American first, Marion Crawford. He has recently been brought to book for an, alleged error in canon law in " Via Crucis." The point is somewhat obscure, dealing with an age hardly accurate historically. "The Ralstons" contains an indubitable error in connection with the extraordinary will of Robert Lanisdale. It is only a matter of millions, nevertheless there are those who desire to break the will and get the cash. The will was properly executed and the testator had full capacity.
Mr. Crawford succeeds in breaking the will on the remarkable theory that it could not be proved that a third witness signed the instrument in the presence of the other two, and that such third witness was a probable legatee. Of course this is absurd. Such was never the law in New York State the locus in this case. The fact of witnesses not having signed in the presence of each other would not invalidate the will. The absence of the entire attestation clause would not necessarily do 80. And the fact of a witness being a legatee would not debar a will from probate. Moreover only two witnesses are required by statute, and prior to the statute proof by two attesting witnesses was sufficient. Mr. Crawford's theory of fiction would be an extenuating circumstance, something which could not be pleaded in behalf of Mr. Howells.
There are now no black patches in the dark night of the American literary firmanent. At least in the Zodiacal sign of fiction all is stellar glory. And one of the serenest and brightest of new-born stars is Miss Ellen Glasgow. Her first book, "The Descendant," though dealing with a dangerous theme, is remarkable for its balance, its sanity and concreteness, but her almost scientific precision did not prevent her falling into a technical legal error.
Michael Akershem, an iconoclastic hero, commits homicide. He is tried by a jury and convicted. When the jury report he is in his cell and the verdict is brought to him there by his counsel. Now, as a matter of law, when a defendant is tried on an indictment for felony such defendant must appear in person when the verdict is received. Were it not that Miss Glasgow killed off her hero she might be persuaded to have the verdict set aside or the ground of this irregularity and give
us a sequel to the altogether admirable 'Descendant."
In "The Voice of the People," her last and her best work, Miss Glasgow has given us several fine lawyers, and she treats of law and its next of kin, politics, with a sure and perfect hand.
Her fine novel is, however, spared absolute perfection by its report of a miracle. The author is describing with brilliant touch the "summer dawns of Eugenia's childhood." "There were hours when awaking, wide-eyed, Eugenia would rise on her elbow and look out to the western horizon where the day broke in a cloud of gold." But it is all very beautiful, and no mocking bird ever sang half so exquisitely "the lyric ecstacy of dawn."
If an author owes an obligation to his hero, Paul Leicester Ford more than fulfills his. Perhaps many a young law-student plodding along for several years and dreaming of that far off time when he can chase ambulances for accident cases and pursue hearses for wills to probate has envied the Honorable Peter Sterling, of the New York bar, who never had to study law or serve a clerkship. The redoubtable and composite Peter sprang a full-armed and admitted lawyer right from the brain of Mr. Ford like Pallas from that of Jove. He graduates from a literary college in one State, goes into another, and immediately sets up there as a lawyer on his own account. No law reading, no clerkship, no examinations. No flight of time, nothing. Friends advise him to go into an office. Peter "shakes his head." Perhaps he had some secret "pull" with the examining board or mislead the bench with false affidavits. Ugly suspicion. In any event, though the Hon. Peter Sterling is a brilliant ornament to the bar of which he is improperly a member, some fine day he may be compelled to show cause why he should not be punished for contempt of court.
It would hardly be expected that the accurate and precise "Scholar in Politics," Senator Henry Cabot Lodge, would lapse not only in the description of a trial but in the statement of a fact connected with it. He has certainly done the former and apparently the latter in his excellent biography of Alexander Hamilton. He describes a murder trial in which Hamilton appears for the defense. The chief witness for the prosecution was suspected by the counsel of the murder. In order to confound the witness and demonstrate his guilt, candles were brought in and so placed as to throw their light on the suspected person's face. Then Hamilton cross-examined him and called the attention of the jury to his guilty countenance. The witness rushed from the room covered with the calumny of guilt. So, in substance says the Senator.
Now it is true that such a coup de theatre was successfully resorted to in that case. But it was not the ingenious device of Hamilton. The credit belongs to his associate counsel for the defense,
Aaron Burr. It was Burr who cross-examined the witness and who, in closing for the prisoner, seized two candles, held them so as to throw their glare on the face of the witness, and exclaimed, “Behold the murderer, gentlemen."
In the recent discussion as to the comparative merits of Hugh Wynne, Richard Carvel and Janice Meredith, a fine trilogy of Revolutionary fiction, the statement has frequently been made that every incident in the first of these can be verified. Hardly. For the accomplished Doctor Mitchell has broken the neck of Pegasus at least once. Perhaps it will be sufficiently a propos to the general subject to point this out. The author is picturing beautifully the gathering of the first Continental Congress which convened in Philadelphia, September 5, 1774. Among the wellknown figures mentioned he speaks of the “lean, bent form of Mr. Jefferson, deep in talk with Roger Sherman." Thomas Jefferson was not a delegate to this Congress and did not attend it. Of course Jefferson was there in spirit, so perhaps the doctor saw" the lean, bent form" subjectively. Only on that theory- a touch of the new symbolism in fiction perhaps verified. The perfect picture of a trial and court scene which Thomas Nelson Page has given us in his Red Rock is but a single characteristic of the judicial spirit which animates and pervades that magnificent novel. However the titles cited here, especially the newer fiction suggest not so much opportunities for captious criticism as the magnificent use that is being made of the opportunities the novelist may find in our history and our national life.
I can the statement be
Our colonial, revolutionary and reconstruction periods, heroic all, afford the richest material as is now being demonstrated, for a series of novels that will be the glory of prose fiction and furnish wealth for another world epic. Assuredly a Wizard of the West will arise to mould and fashion it, breathe into it the divine afflatus and usher in the Golden Age of our National Literature.
LIABILITY OF A LANDLORD FOR LEASING PREMISES INFECTED WITH DISEASE.
T is well settled that in the absence of a special agreement a landlord is not bound to make any repairs on leased premises. (Harry v. Harry, 127 Ind. 91; Petz v. Voigt Brewery Co., [Mich.] 74 N. W. R. 651; Harper v. Fall, 63 Minn. 520, 65 N. W. R. 913; Clyne v. Holmes, [N. J.] 39 Atl. R. 767; Wynne v. Haight, 50 N. Y. Sup. 187.) Nor to pay for repairs or improvements made by the tenant. (Harry v. Harry, 127 Ind. 91; Mull v. Graham, 7 Ind. App. 561. See Sheehan v. Winchill, 18 Wash. 447, 51 Pac. R. 1064.) Even though
the premises be in such a condition that they will naturally become dangerous, if not repaired. (Deller v. Hofferberth, 127 Ind. 414; Miller v. | Rinaldo, 47 N. Y. Sup. 636; Dowling v. Nuebling, 97 Wis. 359, 72 N. W. R. 871.) Even the landlord's promise to repair, made after the lease was entered into, is held not to bind him, as lacking a legal consideration to support it. (Taylor v. Lehman, 17 Ind. App. 585; Purcell v. English, 86 Ind. 34; Dowling v. Nuebling, 97 Wis. 350, 72 N. W. R. 871; Hall v. Berton, 38 N. Y. Sup. 979.) And, if the landlord should voluntarily make some repairs, that fact would create no liability on his part to make others. (Matler v. Strangmeier, I Ind. App. 556.) Even where the landlord covenanted to repair a building at a certain time, but refused to do so, it was held to be the tenant's duty to make the repairs himself, and offset the costs against the rent, and he was denied the right to recover the damage to his goods occasioned by the lack of repairs. (Hendry v. Squier, 126 Ind. 19.)
It is also held that there is no implied warranty that a leased house or storeroom is or shall con tinue to be fit for the purpose for which it is let. The tenant must determine for himself the safety and fitness of the premises. (Lucas v. Colter, 104 Ind. 81; Murray v. Albertson, 50 N. J. Law, 167; Jaffe v. Harteau, 56 N. Y. 398.)
Under these rules it is held that a landlord is not ordinarily liable for injuries to the person or property of the tenant caused by the dangerous condition of the leased premises. (Purcell v. English, 86 Ind. 34; Dean v. Brock, 11 Ind. App.; Hendry v. Squier, 126 Ind. 19.) But where there is a defect in the premises known to the landlord, which is not apparent on inspection, but which would make their occupation dangerous (Holton v. Waller, 95 Iowa, 545, 64 N. W. 663; Coke v. Gotkese, 80 Ky. 598; Stenberg v. Wilcox, 96 Tenn. 163 and 328; Hines v. Wilcox, 96 Tenn. 148 and 328), the rule is different. Thus a landlord is liable for injuries from falling into concealed pitfalls by the imperfect filling up or covering over of old wells (Hamilton v. Feary, 8 Ind. App. 624; Holton v. Waller, 95 lowa, 545, 64 N. W. 663), or the improper construction of floors and stairway. (Coke v. Gotkese, 80 Ky. 598; Stenberg v. Wilcox, 96 Tenn. 163 and 328; Hines v. Wilcox, 96 Tenn. 148 and 328.) And where the landlord knows of some danger to the life or health of a person who may occupy his house, but rents it to a tenant without notifying him of the danger, he is liable for resulting damages. Thus, where a house (Minor v. Sharon, 112 Mass. 476) or apartments in a building (Ceser v. Karutz, 60 N. Y. 229) had been occupied by persons sick with the small-pox, and the landlord, without causing the rooms to be disinfected, leased them to a tenant who did not know that persons having the small-pox had occupied them, and members of the tenant's family
contracted the disease, the landlord was held liable for damages. (Ceser v. Karutz, 60 N. Y. 229; Minor v. Sharon, 112 Mass. 487. See Hamilton v. Feary, 8 Ind. App. 624.)
In the Massachusetts case cited it was insisted that the plaintiff's failure to have the members of his family vaccinated immediately before moving into the house deprive him of the right to recover, but the court held that, as the members of his family had been vaccinated some time before, it was for the jury to say whether the plaintiff's own negligence had contributed to cause them to take the disease.
In the New York case the plaintiff ieased apartments in which a child had recently died of smallpox. The landlord knew this fact, but leased them to the plaintiff without having them disinfected or notifying her of the facts. The plaintiff contracted the disease by living in those rooms. The charge to the jury, "that if a landlord lets premises to a tenant and they are infected, and he knows it, it is his duty to let the tenant know it," but unless the landlord knew or had reasonable notice that the premises were infected the plaintiff could not recover, was approved by the Court of Appeals.
It has also been held that where a house which was infected with diphtheria was leased to a tenant who was ignorant of that fact the landlord was liable for damages caused by the tenant's children taking the disease. (Snyder v. Gorden, 46 Hun [N. Y.] 538; Cutter v. Hamlen, 147 Mass. 471.)
In the Massachusetts case last cited, the child of a former tenant had died of diphtheria in the leased house eight months before the plaintiff moved into it. Soon after the death the house was fumigated under direction of the board of health to its satisfaction, but it was shown that the land lord knew that the drains were in such a defective condition as to make the danger of infection from a disease with which a former tenant was afflicted especially great; and it was shown that he caused them to be repaired soon after plaintiff and his family were taken sick. The landlord was held liable in an action for deceit. (Cutter v. Hamlen 147 Mass. 471.)
In the New York case cited the plaintiff was informed that the house was infected with diph theria from a child then sick in one of the rooms and inquired of the landlord as to the truth of the statement. The landlord assured him that there was no scarlet fever or diphtheria in the house. But soon after he took the rooms one of the children died of the disease, which it had taken from the sick child of another tenant. The court said that it was no part of the duty of the plaintiff to search or inquire who was the doctor that had treated the sick child in order to ascertain from him the nature of the disease with which it suffered, and held the landlord liable in damages.
It has also been held that the landlord is liable
for damages where sickness is caused by the contamination of the water in the well on leased premises from a cause of which the landlord knew, but concealed from the tenant. (Maywood v. Logan, 78 Michigan, 135.)
In the case last cited the plaintiff notified the landlord that there was something wrong with the well before he took possession of the leased premises. The landlord made an examination and found the putrid carcass of a dog floating in the well. He did not remove it, but concealed from the plaintiff the fact that it was there. The plaintiff and his whole family were made sick by using the water. The court said: “The acts of the plaintiff, his examination of the well and concealment and denial of the cause of the pollution of the water, permitting the defendant and his family to remain there, conclusively show that his understanding was that the property was to be put and kept in a healthful condition as a part of his contract to lease, and he therefore became liable for all damaes traceable to his acts and misrepresentations. The defendant and his family would have suffered no greater wrong if the plaintiff, when he uncovered the well and made the examination, had actually polluted the water by placing the animal there." The Supreme Court affirmed the judgment with $50 damages on account of the vexatious appeal.
The landlord's liability in such cases arises from his concealment of the dangerous condition of the property by reason of defects not apparent on casual inspection. (Bowe v. Hunking, 135 Mass. 384; Daily v. Wise, 132 N. Y. 311.)
This principle has been applied in cases where the landlord's act in fraudulently representing a house to be in good condition when it was defec tive, or his fraudulent concealment from the tenant of known defects, has been held to excuse the latter from the obligation to pay rent after he has abandoned the house on account of such defects. (Daily v. Wise, 132 N. Y. 306; Jackson v. Odell, 12 Daly, [N. Y.] 345.)
It has been held that actual notice to the landlord is not necessary to fix upon him liability for injuries resulting from defects in the premises but that notice to his representative, who had the oversight and care of the building and the collection of the rents, was sufficient to charge him with knowledge and the duty of putting the premises in a safe condition. (Evers v. Weil, 17 N. Y. Sup. 49.)
The authorities, and especially those which follow the English cases, all hold that the obligation is greater on the part of a landlord who leases furnished apartments than if the rooms are unfurnished, as there is then an implied undertaking that they are in habitable condition. But it is held that a man who has let part of his house as furnished lodgings is under no obligation to notify his lodgers upon a member of his family becoming