Part 2 — INDEX

ABANDONMENT, of action, if voluntary, equivalent to termination in defendant’s favor, 629. of action, by way of compromise, not equivalent to termination in defendant’s favor, 629.

ABSTRACTER OF TITLE, liability to third party injured by mistake or omission, 262 n.

ABUSE OF PROCESS, malicious, 653.

ACCIDENT, without negligence, excuses trespass to person, 29, 30, 35, 40. excuses trespass to personalty, 42. through negligence, no excuse for a trespass, 29, 30, 35.

ACTION (see Malicious Institution of Civil Action).

ADVERTISING, blind, interference with, 838.

ADVICE, of counsel, probable cause for prosecution of plaintiff, 634.

ADVOCATE, statements by, when privileged, 697, 709.

ANIMALS, trespass on land by cattle, 404, 406. trespass on land by dog, 406 n., 445. trespass on land by chickens, 406 n. liability of owner for trespass by cattle driven on highway, 406, 409 n. statutes as to trespassing animals, 409, 410 n. common law as to trespassing, how far applicable in U. S., 410, 414 n. liability where cattle turned on another’s unenclosed lands, 414 n. liability of owner of unenclosed lands for injury to trespassing cattle, 409, 415. whether a right of pasturage on unenclosed lands, 415, 419 n. liability for injuries by wild, 419, 421, 422. liability for injuries by vicious domestic, 421, 421 n. classification of animals with respect to liability for injuries by, 423, 427 n. liability for injuries by bees, 425 n. what are wild, 424, 425. injury through fright at sight of wild animal, 427. interference with wild, bars recovery for injury, 430. contributory negligence of person injured by, 432 n. injury by domestic, scienter necessary, 433, 434 n. injury to trespasser by domestic, 434 n. vicious dog killed by trespassing dog, 434 n. what constitutes scienter, 434 n. liability for injury by vicious, where neither scienter nor negligence, 434, 436 n. what is dangerous propensity, 437. injury by horse running at large on highway, 438, 440. 1014injury to person by trespassing, 441, 448, 451 n. injury to person by trespassing hen, 450. injury to person by trespassing animal, normally harmless, 450. escape of wild or vicious, through vis major, 471. escape of wild or vicious, through act of third person, 436 n. injury by vicious, when excited by third person, 436 n.

ARREST (see Malicious Institution of Civil Action), what is, 19, 20, 21.

ARTICLES OF PEACE, malicious exhibition of, 626.

ASSAULT, what is, 1, 2, 4, 6, 7, 10. what is not, 2, 3, 11. complete without contact, 1. aiming unloaded gun, 7, 9 n. firing revolver in plaintiff’s presence, but not at him, 7 n. act of preparation for, 2 n. intention of defendant, 7, 10 n. present ability to injure, 7, 9 n. aggravation of, 11. insulting words, looks, and gestures, no, 11, 11 n., 12 n.

ASSUMPTION OF RISK, by trespasser, 157, 160. by licensee, 177, 179. by servant, 201. by interference with wild animal, 430. of another’s negligence, 345, 351 n.

ATTACHMENT, action lies for maliciously causing, 629 n., 646.

ATTORNEY (see Counsel).

AUTOMOBILES, operation of, by unlicensed person, 402 n. unlicensed, status of in highway, 398, 400 n., 402 n.

BAILEE, standard of care, 82 n.

BANKRUPTCY, malicious institution of proceedings in, 644. imputation of, to a business man, 690.

BATTERY, what is, 12, 16. what is not, 12, 13. hostile touching, 12 n. touching contra bonos mores, 12 n. unauthorized surgical operation, 12 n. defendant must be actor to make, 13. touching plaintiff to attract his attention, when a, 13. by striking a horse when driven, 15. whether indictment for, will support action of malicious prosecution, 624. injury to clothes on plaintiff’s person, 16 n. cutting rope connecting plaintiff with his slave, 16 n. injury in course of “friendly scuffle,” 18 n.

1015BEES, liability of owner of, for injuries, 425 n.

BLASTING, injuries by, 40 n.

BOYCOTT (see Competition, Malicious Injury to Plaintiff by Influencing Conduct of Another), secondary, 998, 1004. for the purpose of strengthening union, 978, 987. for the purpose of gaining control of labor market, 989 n. for the purpose of forcing third person to bring pressure on employer, 997.

BREACH OF STATUTORY DUTY (see Public Wrong), how far ground of private action, 510, 512 n., 513, 515, 516. to repair street or sidewalk, 513 n. toward third person, 516, 520 n. liability to trespasser or licensee in case of, 520 n.

BUSINESS, slander of one in his (see Defamation).

CANDIDATE, discussion of qualifications of, 755.

CARRIER, may be sued either upon contract or tort, 125, 126 n.

CLERGYMAN, imputation of misconduct to, 689 n. not liable for public refusal of communion, 757.

COMBINATION, whether members of, liable for acts which would be lawful if done by a single individual, 910, 976, 977 n.

COMMENT, fair, on public matters, not actionable, 726, 769. aspersion of motives not fair, 766, 775. false charge of specific acts not fair, 775 n., 785 n., 792. fair, distinguished from privileged occasion, 760, 779, 795 n. violent attacks and insulting words not, 786 n.

COMMERCIAL AGENCY, statements by, when privileged, 739 n.

COMPETITION, conflict between employers and employed is, 976. mere rivalry is fair, 936. puffing is fair, 826. combination to smash rates is fair, 906. reducing prices, 913. sending our rival’s business card in injurious manner, not fair, 831. bad motive, 913, 918, 923, 939. inducing servant at will to leave master, whether fair, 873 n. inducing servant to leave at expiration of term, 872 n. influencing third person by fraud, not fair, 827, 828 n., 907 (but see 858). misleading use of one’s own name, 829 n. influencing third persons by force or threats of physical injury, not fair, 864, 935, 937, 907. boycotting by threats of pecuniary damage, not fair, 952, 978, 989, 996, 998, 1004. inducing third person to break contract, not fair, 907, 908.

1016CONSENT (see Leave and License).

CONSPIRACY (see Combination), to defraud creditors, 846. to suborn witnesses, 710. to alter provisions of will, 852.

CONTRACT, causing breach of, a tort, 874, 884, 887, 908.

CONTRIBUTORY NEGLIGENCE (see Public Wrong), an affirmative defence, 264 n. must be negatived by plaintiff, 264, 264 n. a bar to recovery, 263, 266 n., 274. must be a proximate cause of the injury, 265, 294, 296 n. doctrine of comparative negligence, 267, 269, 269 n. apportionment of loss, 269, 273 n. doctrine of last clear chance, 275, 278, 279, 281, 282, 283, 288, 295, 296, 299, 301, 302, 308, 317, 320, 321, 322, 324, 337. of child, 327, 328, 329. humanitarian doctrine, 330. no bar in case of wilful or intentional injury, 334, 337. exposure of property to danger from negligence of another, 345, 351 n. of carrier not imputable to passenger, 352, 368 n. of driver of vehicle, when imputed, 359, 360 n., 361, 364. of participant in joint enterprise, 362. of agent or servant imputed, 362 n. of husband whether imputed to wife, 362 n. as between fellow servants, 362 n. of bailee whether bars bailor, 362 n. of parent or custodian of child whether imputed to child, 366, 370 n., 370. of beneficiary under Lord Campbell’s Act whether bar to recovery, 371, 374, 374 n., 377 n. in case of injury by animals, 432 n.

COUNSEL, statements by, when privileged, 697, 709 n. advice of, probable cause for prosecution, 634.

CREDITORS, conspiracy in fraud of (see Conspiracy).

CRITICISM (see Comment).

DAMAGE, whether action for deceit without, 525, 529, 595. measure of, in action for deceit, 604, 605, 606 n. caused by repetition of slander by third person too remote, 809. slander actionable by reason of special, 807, 808, 809, 811. loss of society of friends and consequent illness not special, 808. loss of hospitality is special, 810. loss of performance of gratuitous promise is special, 811. loss of performance of promise to marry is special, 884 n. loss of performance of contract where performance reasonably assured is special, 887 n. malicious but not defamatory words, whether actionable, if special, 812. no action for slander of title without special, 816. special, what is, 819 n., 847 n., 856, 859 n., 884 n. special, not necessary where one passes off his product as another’s, 829 n. special, not necessary in action for malicious injury to business, 854.

1017DANGEROUS USE OF LAND, for reservoir, 452, 482 n. “non natural use,” 463, 463 n. what is, 463 n., 466 n. tank of petroleum, 466 n., 482 n. stored nitroglycerin, 466 n. hydraulic mains, 467 n. customary or statutory authority to make, 467 n. no liability for, in case of vis major, 468. no liability in case of interference by third person, 475. steam boiler, 477. explosives, 482 n., 498, 502. doctrine of, considered, 477, 482. water pipes in building whether, 492. gas in pipes, 493 n. allowing land to go to weeds not, 493. maintaining fire, 496. fires set by locomotives, 497 n.

DAUGHTER, no action for marrying one’s, 869 n.

DECEIT, requisites of action for, 521, 530. whether action for, without damage, 529, 531, 595, 596 n. fraudulently procuring wife to refuse to live with husband, 533. sufficient if false statement one motive of plaintiff’s action, 535, 536 n. representation of intention, 537, 539, 541 n., 542, 547 n. purchase on credit with present intention not to pay, 542, 548. promissory representation, 550. known impossible prophecy, 551 n. statement of vendor as to price, 551, 553 n. statement of opinion, 551, 553, 555. statement as to value, 553 n. statement as to value of promissory note, 557. statement of value, whether opinion or fact, 551, 553, 555, 559, 560 n. statement as to matter within special knowledge of defendant, 556, 560, 616. concealment of material fact, 561, 562 n. statement must be known to be false or made recklessly, 563, 569 n. statement made recklessly without knowledge of facts, 573 n. liability for innocent or negligent misrepresentation, 572, 573 n., 574, 576. statement by fiduciary, 578. estoppel to deny truth of statement, 580, 582 n. duty to make representation good, 581. duty to know whether statement true, 583, 584 n. statement of belief as if fact, 584. statement without reasonable ground for belief, 588 n. reliance on statement where defendant obviously without personal knowledge, 588 n. not necessary that defendant profit by, 588. statement expected to be passed on to others, 592, 595 n. statement not expected to be passed on to others, 595. procuring plaintiff to incur liability, 597, 598. procuring plaintiff to refrain from selling property, 599, 601. whether plaintiff must use diligence to guard against, 606, 607 n., 608, 612 n., 616, 617 n. execution of instrument without reading, 608 n. 1018reliance on representation where equal means of knowledge, 608 n., 612. reliance on friendship, 608 n. reliance on representation where plaintiff informed of truth by another, 612 n. reliance on assertion of title, 612 n. reliance on statement as to boundary, 612 n. reliance on representation as to quantity of land, 612, 613. refusal of defendant to put representation in writing, 612 n. representation as to law, 616 n. stipulations against liability for, 617. measure of damage in action for, 604, 605, 606 n.

DEFAMATION, Publication, communication to plaintiff alone not a, 657, 659. communication to plaintiff’s wife, 658. communication by defamer to his own wife, 658 n. communication to business partner, 658 n. communication to plaintiff’s attorney, 659 n. mailing of post card, whether a, 660 n. in ignorance of the libel, 660 n. must be of and concerning plaintiff, 665. of and concerning plaintiff, what is, 669, 672, 676. reading letter to third person a, 658. reading letter by third person a, 659. Libel, what is, 679. defamatory statement that describes two different persons, 671. defamatory statements partially describing each of two different persons, 672. words injurious to plaintiff in the eyes of part of the community, 673, 674 n. use of plaintiff’s name to describe fictitious person, 674. Slander, words imputing crime, 661, 682, 683. words imputing unchastity to a woman, 683, 685. words disparaging one in his calling, 687, 690, 691. imputation of misconduct to clergyman, 689 n. imputation of misconduct to teacher, 689 n. imputation of drunkenness to officer, 689 n. imputation of insolvency to tradesman, 690. imputation of cheating to tradesman, 691 n. imputation of ignorance to physician, 692. imputation of misconduct in office of honor not of profit, 693 n. words imputing a loathsome disease, 694, 695. imputation of insanity, 694, 695 n. defamatory words causing special damage, 807, 808, 809, 811. words to be taken in natural sense, 661. Justification, truth a, 695. belief in truth not, 676, 771 n. repetition not a, 677. Absolutely Privileged Occasions, statements in legislative proceedings, 697 n., 710 n. in course of acts of state, 697 n. official statements of administrative officers, 710 n. 1019statements in judicial proceedings, by judge, 695; by witness, 703, 707; by counsel, 697, 702 n. what are judicial proceedings, 702 n., 710 n. irrelevant statements in judicial proceedings, 696, 703, 707, 709 n. what statements are irrelevant, 704, 709 n., 710 n. Conditionally Privileged Occasions, reports of legislative proceedings, 720. reports of judicial proceedings, 714. reports of ex parte judicial proceedings, 716. reports of quasi judicial proceedings, 729, 729 n. report of proceedings of church commission, 730 n. petition or memorial for removal of public officer, 768 n. fair abstracts of judicial proceedings, 731. reports of public meetings in general, whether, 727, 728 n. publication of reports of administrative officers, 729 n. reports of news by newspapers not, 732. statements in common interest of maker and receiver, 734, 736 n. statements by person immediately interested to protect his own interest, 737 n. statement of suspicions in course of investigation of crime, 736. statement in course of dispute as to property, 738 n. solicited statements in interest of receiver, 738. statement by commercial agency, 739 n. statement by attorney to client, 740 n. statement in course of business duty, 740 n. statement by member of family as to character of suitor, 740 n. statement as to character of candidate for admission to society, 740 n. solicited statements as to character of servant, 738. solicited statements as to credit of tradesman, 739 n. statements by a fiduciary to his principal, 740 n. volunteered statements in interest of receiver, when, 740, 746 n., 747, 749. publication of, in presence of stranger, 750, 753, 754 n. general publication as to candidate for local office, 754 n. publication of matter of public interest in the community, 755. statements in public meetings, 756 n. published reply to defamatory statements, 756 n. publication to representative of interested receiver, 763. publication of, on post card, not justifiable, 754. publication of, to type-writer, whether justifiable, 758, 761 n. publication of, to wrong person, by mistake, whether excused, 761 n. malice destroys immunity in, 761. Fair Comment, upon public matters not actionable, 726, 769, 771 n. what are public matters, 771 n., 795 n. distinguished from privilege, 770, 779, 795 n. criticism of published writings when, 772, 775, 782. aspersion of motives not, 769, 775. false charges of specific acts, 775 n., 785 n., 792. violent attacks and insulting statements, not, 786 n. Malice, in fact and law, 662. what is, 749, 771 n. burden is on plaintiff to show, 790 n. publication prima facie evidence of, 663. 1020express, must be proved, if occasion is privileged, 790. a question of bona fides not of reasonableness, 763. a question of reasonableness as well as bona fides, 766.

DISPARAGEMENT OF PROPERTY, 815 n. of title (see Slander of Title). of goods, 819, 823 n., 861.

DOGS (see Animals), trespass on land by, 406 n., 445.

DRUNKENNESS, no excuse for tort, 662 n.

EMPLOYER AND EMPLOYEE (see Master and Servant), right of employer “to have labor flow freely to him,” 903. inducing breach of contract by employees, 884, 887. inducing employer to discharge employee because not a member of trade union, 939, 978 (see Malicious Injury to Plaintiff by Influencing Conduct of Another). boycotting, 950, 952, 978, 988, 989 n., 997, 998, 1004. picketing, 978 n.

ENTICING, servant, 864, 868.

FALSE IMPRISONMENT (see Imprisonment).

FENCE, malicious erection of, 928.

FRIGHT (see Mental or Nervous Shock).

HUMANITARIAN DOCTRINE (see Contributory Negligence).

IMPRISONMENT (see Arrest), what is, 18, 20, 21, 21 n., 23, 23 n., 28 n. contact not necessary, 19, 21, 23. what is not, 19, 20, 24. mere words without submission to restraint not an, 19, 20. partial obstruction not an, 24. shadowing by detectives, 23 n.

IMPUTED NEGLIGENCE (see Contributory Negligence).

INEVITABLE ACCIDENT (see Accident).

INFANT, liable for torts, 96, 97 n. negligence of, 88, 88 n., 90, 93, 93 n.

INJUNCTION, maliciously obtaining, 648 n.

INSANE PERSON, liable for torts, 29, 29 n., 662 n.

INSULT, gestures no assault, 11, 11 n., 12 n. looks no assault, 11, 11 n., 12 n. words no assault, 11, 11 n., 12 n. action lies for written or spoken, by statute in Va., 657 n. insulting statements not fair comment, 786 n.

INVITEE (see Occupier of Premises).

1021JUDGE, statements by, absolutely privileged, 695.

JUDICIAL PROCEEDINGS, statements in, absolutely privileged, 695, 697, 703, 707, 709 n. reports of, conditionally privileged, 714, 716, 720, 731, 761. reports of quasi, conditionally privileged, 729.

JURY, malice in action for malicious prosecution a question for, 638. malice in fact in defamation a question for, 662, 752, 763, 790.

JUSTICE OF THE PEACE, advice of, when probable cause for prosecution, 635 n.

LABORERS, STATUTE OF, actress not a servant within, 879.

LAND (see Malicious Use of One’s Own Land; Dangerous Use of Land).

LANDLORD AND TENANT, liability of landlord for defect in premises, 220, 222 n.

LAST CLEAR CHANCE (see Contributory Negligence).

LEAVE AND LICENSE, no bar to action for injury received in prize fight, 18. procuring abortion with plaintiff’s consent, 19 n. injury in course of illegal charivari party, 18 n.

LEGISLATIVE PROCEEDINGS, statements in absolutely privileged, 720. reports of conditionally privileged, 720.

LIABILITY WITHOUT FAULT (see Animals; Dangerous Use of Land), constitutionality of legislation imposing, 482 n., 494 n.

LIBEL (see Defamation).

LIQUIDATION, malicious proceedings in, against company, 645 n.

LORD CAMPBELL’S ACT, 372 n.

LUNACY, malicious proceedings in, 645 n.

LUNATIC (see Insane Person).

MALICIOUS CONSPIRACY (see Conspiracy).

MALICIOUS EXHIBITING OF ARTICLES OF THE PEACE, actionable, 625.

MALICIOUS INJURY TO PLAINTIFF BY INFLUENCING CONDUCT OF ANOTHER, enticing servant to leave master, 864. debauching servant of another, 866. inducing breach of contract, 874, 884, 887. inducing breach of contract by laborers, 884, 887, 979 n. suborning witness to commit perjury, 710. helping debtor to make assignment in fraud of creditors, 846. slander of title, 813, 816. disparagement of goods, 819. 1022fraudulent imitation of trade-mark, 827. use of envelopes marked telegram leading patrons of telegraph company to believe latter imposing on them, 837 n. fraudulent statement that plaintiff had gone out of business, 854, 859. fraudulent sending out of plaintiff’s business card under injurious circumstances, 831. false though not defamatory imputation upon plaintiff, 812. slander of plaintiff’s wife resulting in injury to business, 837 n. fraudulently inducing testator to revoke bequest to plaintiff, 847, 849. false statement to mortgagee procuring foreclosure in breach of gratuitous promise to mortgagor, 849 n. fraudulently procuring third person to sell to defendant in breach of oral contract with plaintiff within statute of frauds, 852 n. fraudulently altering and defacing will leaving legacy to plaintiff, 852. loosening horse’s shoe to discredit blacksmith, 829. inducing servant at will to leave master, 868. frightening wild fowl from resorting to plaintiff’s land, 935, 937. threats of physical injury to plaintiff’s customers, 863, 864, 897, 935, 968. threats of pecuniary loss to plaintiff’s customers, 952, 996. threat of physical injury to plaintiff’s workmen, 863, 978 n. threat of vexatious suits against customers, 863 n. annoyance of workmen resorting to plaintiff, 979 n. threat to sell adjoining property to colored family, 923 n. threat by association of retail dealers to cease dealing with manufacturer or wholesale dealer, 997 n. threats, what may lawfully be threatened, 975, 975 n. refusal to insure ship if plaintiff employed as master, 836 n. sermon warning congregation against physician, 837 n. interference with blind advertisement, 838. inducing one not to contract with plaintiff, 906, 978, 989, 996, 998, 1004. boycotting, 952, 987, 989 n., 997, 997 n., 998, 1004, 1012 n. strike to strengthen union, 978, 988; to gain control of labor market, 989 n.; to bring pressure on third person, 997, 998, 1009; to procure discharge of plaintiff as means towards better conditions in shop, 998 n.; to get rid of objectionable foreman, 998 n. inducing employer to discharge employee because not a member of trade union, 939, 978. inducing employer to break contracts with laborers, 979 n. “smashing” rates, 906, 913. conspiracy, 910, 971. inciting pauper to sue plaintiff, 651.

MALICIOUS INJURY TO PLAINTIFF BY TORT TO ANOTHER, destruction of husband’s house by wife to injure insurer, 841.

MALICIOUS INSTITUTION OF CIVIL ACTION, actionable, 650 n. not actionable, 649. voluntary abandonment of former action is failure, 629 n. abandonment by way of compromise not failure, 629 n. attachment vacated evidence of want of probable cause, 634 n. by instigating another to sue, 651. in name of another, 655. prosecution of unfounded claim for patent, 645 n.

1023MALICIOUS PROCEEDINGS, in bankruptcy, 644. in lunacy, 645 n. for removal of officer, 645 n. levy on execution under fraudulent judgment, 648 n. procurement of execution of search warrant, 648 n. attachment, 646. arrest on civil process, 648 n. holding to bail, 648 n. replevin, 648 n. garnishment, 648 n. procurement of injunction, 648 n. excessive attachment, 652 n. for winding up company, 645 n.

MALICIOUS PROSECUTION, Institution of Criminal Proceedings, 620. application for warrant but none issued, 624 n. arrest without warrant, no further prosecution, 624 n. search warrant issued, no arrest or seizure of property, 624 n. warrant issued, plaintiff leaves jurisdiction to avoid arrest, 620. Nature of Criminal Charge, 624. prosecution under unconstitutional statute, 624 n. prosecution in court without jurisdiction, 624 n. Failure of Prosecution, generally essential, 627. when not necessary, 625. nolle prosequi is, 627. indictment quashed is, when, 629 n. striking from docket because in wrong court, when, 629 n. Abandonment of Prosecution, if voluntary equivalent to termination in defendant’s favor, 627. by way of compromise not equivalent to termination in defendant’s favor, 629 n. otherwise where settlement obtained by duress, 630 n. Reasonable or Probable Cause, essential, 630. definition of, 631 n. a question for court, 632, 637. conviction, though reversed, prima facie evidence of, 632, 633 n. conviction, though reversed, conclusive evidence of, 627. commitment for grand jury, evidence of, 632, 633 n. finding of indictment evidence of, 632, 633 n. advice of counsel is, 634. advice of justice of the peace, whether, 635 n. advice of layman not, 635 n. what must be stated to counsel, 636 n. defendant’s belief in plaintiff’s innocence negatives, 639. failure of prosecution, whether evidence of want of, 633 n., 641. want of, not to be inferred from malice, 643 n. if not, still no action for, if plaintiff was in fact guilty, 644. Malice, meaning of, 637, 638 n., 642. question of fact for jury, 637. not a necessary inference from want of probable cause, 636, 641, 643 n. of no moment, if probable cause exists, 630. Damage, 624.

1024MALICIOUS USE OF ONE’S OWN LAND, general discussion of doctrine of, 923, 939, 952 n. by erecting fence to annoy neighbors, 927 n., 928. by erecting building annoying to neighbor, 926. by diverting percolating water, 928 n. malice must be dominant motive, 935 n. by frightening wild fowl from resorting to plaintiff’s land, 935, 937. by cutting trees causing evaporation from stream to injury of plaintiff’s water right, 938.

MALICIOUS WORDS (see Defamation; Malicious Injury to Plaintiff by Influencing Conduct of Another; Slander of Title).

MANUFACTURER, liability of, for defects, 228, 233, 235, 251.

MARRIAGE, loss of, is special damage, 807. loss of performance of promise to marry, is special damage, 884 n. fraudulent, of plaintiff’s daughter, 869.

MASTER AND SERVANT, seduction of servant of another, 866. enticing servant of another, 864. threat of physical injury to servant of another, 863. inducing servant at will to leave master, 873 n.

MENTAL OR NERVOUS SHOCK, action for causing, 45, 49 n., 50, 57 n., 58, 61.

MISFEASANCE (see Negligence).

MISTAKE, in addressing a privileged communication, 761 n. defamation by, 761 n.

MORAL DUTY, assumption of performance of, 129, 141. in absence of relation between parties, 131. where relation between parties, 134, 137 n.

MOTIVE (see Malice), aspersion of, of public man, not fair comment, 769, 775.

NEGLIGENCE (see Contributory Negligence; Occupier of Premises; Trespassers; Public Wrong), without damage, no liability, 41. must be proximate cause of injury, 42. standard of care, 63, 66 n., 67, 76. ordinary care, definition of, 70. standard in case of physical disability, 71, 73. degrees of, 77, 79, 79 n., 82 n., 83, 85 n. statutory degrees of, 86. of infant, 88, 88 n., 90, 92 n., 93. proof of, 98, 102, 106, 111, 113, 115. duty of care, 120, 125. definition of, 156. requirement of duty of care toward person injured, 156. in performance of gratuitous undertaking, 184 n. liability for, of maker or vendor of chattel, 228, 233, 235, 246, 251. comparative negligence, 267, 268 n., 269. 1025difference between gross negligence and wanton or reckless conduct, 340, 342 n., 343. as ground of recovery for injury by vicious animal, 434. breach of rules of a private corporation, whether, 508 n. violation of ordinance, whether, 508 n. breach of statutory duty, whether, 391, 400 n., 504, 506, 506 n. liability for negligent language, 573 n.

NERVOUS SHOCK (see Mental or Nervous Shock).

NEWSPAPER, has no peculiar privilege in defamation, 732.

NOLLE PROSEQUI (see Malicious Prosecution).

NONFEASANCE, 127, 129, 131, 134, 137, 142 n.

NUISANCE (see Dangerous Use of Land), “attractive” 165, 170 n., 170, 173, 176 n.; age to which doctrine applicable, 171 n. allowing land to go to weeds not, 493. trees shading another’s land not, 495. stored explosives, 498, 502.

OCCUPIER OF PREMISES (see Trespass; Nuisance “attractive”; Landlord and Tenant), liability to trespassers, 147, 149 n. liability to known trespassers, 149. liability to anticipated trespassers, 150, 154, 156 n. liability to trespassers prohibited by statute, 153 n. duty to look out for trespassers, 156 n. liability to licensee, 177, 179, 183, 183 n., 186, 191. injury to licensee by “trap,” 179. liability to children licensees, 183 n. liability where known permissive use by public, 183 n. liability in case of gratuitous carriage, 183 n. liability to licensee for negligent operation of active force, 186, 190 n. duty to notify of withdrawal of license, 191. liability to invitee, 194, 199 n. duty to child accompanying invitee, 200 n. liability to children invitees, 200 n. duty to invitee of licensee, 200 n. liability where plaintiff exceeds invitation, 200 n. liability where notice habitually disregarded, 201. not an insurer of safety of invitees, 203. duty toward invitees to ascertain condition of premises, 202. liability for injury to invitees by third persons, 204. who are invitees, 207, 214, 220 n. liability to social guest, 222, 225 n. liability in case of license conferred by law, 225, 227 n. liability to trespasser or licensee in case of breach of statutory duty, 520.

PARTY, statements by, privileged, 709 n.

PEACE, malicious exhibition of articles of, 626.

PHYSICAL IMPACT, necessity of, 45, 50, 58, 62 n.

1026PHYSICIAN, slander of, 691.

PICKETING, 897, 968, 978 n., 1005, 1010.

POSTAL CARD, whether mailing is publication, 660 n. sending privileged communication by, 754.

PRIVACY, interference with, 797.

PRIVILEGE (see Defamation).

PRIZE FIGHT, each party to, liable to other, 18.

PROBABLE CAUSE (see Malicious Prosecution).

PROFESSION (see Defamation).

PROMISE, loss of performance of gratuitous, is special damage, 811.

PUBLIC MEETINGS, reports of, whether privileged, 727, 728 n.

PUBLIC WRONG, plaintiff’s participation in, no bar where wilful injury, 377. violation of Sunday law, whether bar to action for negligence, 379, 381, 388 n. violation of ordinance, whether bar to action for negligence, 388, 391. violation of licensing or registration law, whether bar to action for negligence, 398, 400 n. unlicensed automobile, status of, in highway, 398, 401 n., 402 n. injury by dog unmuzzled in violation of ordinance, 434 n. injuries by animals running at large contrary to statute, 441 n. breach of statutory duty, whether negligence, 391, 400 n., 504, 506, 506 n. violation of ordinance, whether negligence, 508 n.

PUBLICATION (see Defamation).

REASONABLE AND PROBABLE CAUSE (see Malicious Prosecution).

REPETITION, of slander, actionable, 677.

REPORTS, of legislative and judicial proceedings, privileged (see Defamation).

RES IPSA LOQUITUR, inference of negligence, 98, 102, 102 n., 105 n., 106. necessary allegation, 105 n. doctrine applies only in absence of explanation, 105 n. in actions by servant against master, 107, 107 n. elements of the doctrine, 110 n. burden of proof not shifted, merely burden of going forward, 111 n. other inferences must be excluded, 113 n. simply a rule of evidence, 115 n.

SCIENTER (see Animals).

SEARCH WARRANT, malicious procurement of execution of, 648 n.

1027SEDUCTION, of daughter, 866. of plaintiff’s fiancée, 884 n. action by woman for, 16. statutory action for, 17 n. by guardian, 17 n.

SERVICE, LOSS OF, by enticing servant, 864. by seducing daughter or female servant, 866.

SLANDER (see Defamation).

SLANDER OF TITLE (see Disparagement of Property), differs from slander of person, 813. what is, 815 n. action for, survives as injury to property, 813. special damage essential, 816. whether malice required, 816 n. what is special damage, 819 n., 847 n., 855, 859 n., 883 n., 884 n.

SMASHING RATES, is fair competition, 906, 913.

SPECIAL DAMAGE (see Damage).

SUBORNATION OF WITNESS, action for, 710.

SUNDAY LAWS (see Public Wrong).

TELEGRAM, sending privileged communication by, 753.

THREATS (see Malicious Injury to Plaintiff by Influencing Conduct of Another).

TRADE, competition in (see Competition). slander of one in (see Defamation).

TRADE DISPUTES ACT (English), 897 n., 967 n.

TRADE-MARK, fraudulent imitation of, 827.

TRESPASSER (see Nuisance “attractive”), takes risk of condition of premises, 157. negligent injury of, 147, 149, 150. wilful, negligent injury to, 149 n. child, duty to, 150 n., 160. occupier may assume, will look out for himself, 156 n. child, takes risk of condition of premises, 160. setting traps for, 160 n., 176 n.

TRUTH, justification in action for defamation, 695.

TURN TABLE CASES (see Nuisance “attractive”).

TYPEWRITER, communication to, a publication, 758. communication to, not privileged, 758. communication to, privileged, 761 n.

1028VENDOR OF CHATTEL, liability of, to third persons for defects, 228, 233, 235, 251.

VOLENTI NON FIT INJURIA (see Leave and License).

WATER COMPANY, liability in tort for failure to provide water, 262 n.

WEEDS (see Dangerous Use of Land).

WITNESS, no action against, for perjury, 712. action for subornation of, 710. statements of, privileged (see Defamation)

WORDS, insulting, no assault, 11, 11 n., 12 n. malicious (see Malicious Words). construction of, in defamation, 661.

TRANSCRIBER’S NOTES

P. 403, changed “Holden v. McGillicuddy, 213 Mass. 563” to “Holden v. McGillicuddy, 215 Mass. 563”.

P. 552, changed “they avoid the contract” to “they void the contract”.

P. 840, changed “by continued user in connection” to “by continued use in connection”.

Silently corrected obvious typographical errors and variations in spelling.

Retained archaic, non-standard, and uncertain spellings as printed.

Re-indexed footnotes using numbers and collected together at the end of the last chapter.