an action for the killing of a person by the use of deadly weapons, "not in self-defense," it must be alleged that the killing was not done in self-defense.' It is not necessary to allege that defendant's negligence was such that if death had not ensued the injured person would himself have been entitled to recover for the injury. In an action for the death of the wife, the husband and the personal representative of the wife must join, under the Indiana statute. An action for the death of the deceased cannot be joined with an action by the plaintiff to recover for personal injuries received by himself, caused by the same negligent act.*

§ 1026. Contract and Tort-Waiving Contract and Suing in Tort. — The same act may amount to both a breach of a contract and a tort. Thus on a false and fraudulent warranty, the purchaser may sue for the breach of the warranty, or he may sue for the fraud, i. e., for the tort.5 So in the case of a common carrier, whose obligation by the law is to carry safely, but who may also contract to do so; so in the case of an innkeeper." Where there is an employment, which employment itself creates a duty, an action on the case will be for a breach of that duty, although it may consist in doing something contrary to an agreement made in the course of such employment by the party upon whom the duty is cast.8

ILLUSTRATIONS.

A person had by contract a right to float logs through another's dam, agreeing to pay for all damages

which he might do to the dam. He negligently injured the dam. Held, that he might be sued in tort for the injury: Dean v. McLean, 48 Vt. 412; 21 Am. Rep. 130.

§ 1027. Waiving Tort and Suing on Contract. — In some cases a party may treat a tort as also a breach of a contract, express or implied, and may, waiving the tort, sue for the breach of the contract. Thus where by a tortious act a person has gotten possession of money belonging to another, the latter may sue him on an implied promise to repay it.2 "If a man has taken possession of property, and sold or disposed of it without lawful authority, the owner may either disaffirm his act and treat him as a wrong-doer, and sue him for a trespass or for a conversion of the property, or he may affirm his acts and treat him as his agent, and claim the benefit of the transaction; and if he has once affirmed his acts and treated him as an agent, he cannot afterward treat him as a wrong-doer, nor can he affirm his acts in part and avoid them as to the rest. If, therefore, goods have been sold by a wrong-doer, and the owner thinks fit to receive the price, or part thereof, he ratifies and adopts the transaction, and cannot afterward treat it as a wrong." In some courts it is held that assumpsit cannot be maintained unless the property wrongfully taken from the plaintiff has been converted into money; while in others

Young v. Marshall, 8 Bing. 43; Hall v. Peckham, 8 R. I. 370.

2

Cooley on Torts, 93; citing Hall v. Peckham, 8 R. I. 370; Rand v. Nesmith, 61 Me. 111; Boston etc. R. R. Co. v. Dana, 1 Gray, 83; Shaw v. Coffin, 58 Me. 254; 4 Am. Rep. 290; Howe r. Clancy, 53 Me. 130; Neat v. Harding, 20 L. J., N. S., 250; Hitchin v. Campbell, 2 W. Black. 827; Abbotts r. Barry, 2 Brod. & B. 369; Powell v. Rees, 7 Ad. & E. 426; Berley v. Taylor, 5 Hill, 577; Miller v. Miller, 9 Pick. 34; 22 Am. Dec. 410; Gilmore v. Wilbur, 12 Pick. 120; Appleton v. Bancroft, 10 Met. 231; Morrison v. Rogers, 2 Scam. 317; Staat v. Evans, 35 Ill. 455; Leighton v. Preston, 9 Gill, 201;

Gray v. Griffith, 10 Watts, 431; Goodenow v. Luyder, 3 G. Greene, 599; White v. Brooks, 43 N. H. 402; Lord v. French, 61 Me. 420.

3 Addison on Torts, 94.

Cooley on Torts, 94; citing Barlow v.Stalworth, 27 Ga. 517; Pikev. Bright, 29 Ala. 332; Emerson v. McNamara, 41 Me. 565; Noyes v. Loring, 55 Me. 408; Jones v. Hoar, 5 Pick. 285; Glass Co. v. Wolcott, 2 Allen, 227; Mann v. Locke, 11 N. H. 246; Smith v. Smith, 43 N. H. 536; Morrison v. Rogers, 3 Ill. 317; O'Reer v. Strong, 13 III. 688; Kelty v. Owens, 4 Chand. 166; Elliott v. Jackson, 3 Wis. 649; Stearns v. Dillingham, 22 Vt. 624; 54 Am. Dec. 88; Willett v. Willett, 3 Watts, 277;

it is sufficient if the defendant has converted it in any way.'

§ 1028. Proximate and Remote Cause-In General.A person is liable only for the proximate, and not for the remote, effect of his acts. Proximate damages are defined, in a California case, in the following language: "A long series of judicial decisions has defined proximate or immediate and direct damages to be the ordinary and natural results of the negligence, such as are usual, and as therefore might have been expected; and this includes in the category of remote damages such as are the result of an accidental or unusual combination of circumstances which would not be reasonably anticipated, and over which the negligent party has no control." Natural, proximate, and legal results are all that damages can be recovered for, even under a statute entitling one "to recover any damage." Defendant's act charged to be negligent may be deemed the proximate cause of the injury complained of, if the injury might reasonably be expected. to result. It is not enough to show merely that the injury was the natural consequence of the act.5 While the immediate cause of an accident may have been the break

Pearsoll v. Chapin, 44 Pa. St. 9; Guthrie v. Wickliffe, 1 A. K. Marsh. 83; Fuller v. Duren, 36 Ala. 73; 76 Am. Dec. 318; Tucker v. Jewett, 32 Conn. 563; Sanders v. Hamilton, 3 Dana, 550; Ryers v. Greenbush, 57 Me.

441.

1 Cooley on Torts, 95; citing Halleck v. Mixer, 16 Cal. 574; Cooper v. Berry, 21 Ga. 576; Randolph Iron Co. v. Elliott, 34 N.J. L. 184; Noyes v. Loring, 5 Me. 408; Watson v. Stever, 25 Mich. 386; Moses v. Arnold, 43 Iowa, 187; Miller v. Miller, 7 Pick. 133; 19 Am. Dec. 264; Budd v. Hiler, 27 N. J. L. 43; Stockett v. Watkins's Adm'r, 2 Gill & J. 326; Welch v. Bagg, 12 Mich. 42; Hill v. Davis, 3 N. H. 384; Floyd v. Wiley, 1 Mo. 430; Ford v. Caldwell, 3 Hill (S. C.), 248; Baker v. Cory, 15 Ohio, 9; Fiquet v. Allison,

12 Mich. 328; 86 Am. Dec. 54; Webster v. Drinkwater, 5 Me. 319; 17 Am. Dec. 238; Jones v. Buzzard, 1 Hemp. 240; Johnson v. Reed, 8 Ark. 202; Labeaume v. Hill, 1 Mo. 643; note to Putnam v. Wise, 1 Hill, 240; 37 Am. Dec. 309; note to 2 Green). Ev., sec. 108; Schweizer v. Weiber, 6 Rich. 159; Hudson v. Gilliland, 25 Ark. 180.

2 Scott v. Shepherd, 3 Wils. 203; Henry v. R. R. Co., 50 Cal. 183; Harrison v. Berkby, 1 Strob. 525; 47 Am. Dec. 578; Fleming v. Beck, 48 Pa. St. 309; Isbell v. R. R. Co., 27 Conn. 393; 71 Am. Dec. 78.

ing of a chain, an act the unnecessary doing of which would probably cause the chain to break may be regarded as the proximate cause of the accident. If, by reason of the engineer's negligence, the engine strikes a cow, and the cow rebounds and strikes a woman, the negligence of the engineer is the proximate cause of the injury to the woman. Where a child fell into an excavation negligently left open on a public sidewalk, and was hurt by striking upon broken glass at the bottom, it was held that the defect in the sidewalk was the proximate cause of injury. In a recent English case, certain cattle of the plaintiffs were driven along the road, across which were some sidings belonging to the defendants, when some trucks of defendants were allowed to run down it, across the road, separating the cattle from the drovers, and frightening them so that some of them ran down the road, broke through an imperfect fence into an orchard, whence they strayed upon defendants' railroad and were killed by a passing train. The court of appeal, affirming the decision of the court of queen's bench, held that the defendants were liable, and that the damage was not too remote.1

1 King v. R. R. Co., 25 Fed. Rep. 799. 2 Alabama etc. R. R. Co. v. Chapman, 80 Ala. 615.

City of Galveston v. Posnainsky, 62 Tex. 118; 50 Am. Rep. 517.

Sneesby v. R. R. Co., L. R. 9 Q. B. 263. Said Lord Blackburn, in this case: "The question is, Are the defendants, whose negligence drove the cattle out of the custody of the plaintiff, liable for their death, or is the damage too remote? No doubt the rule of our law is, that the immediate cause, the causa proxima, and not the remote cause, is to be looked at; for, as Lord Bacon says, 'It were infinite for the law to judge the causes of causes, and their impulsions one of another; therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree': Bac. Max. Reg. 1. The rule is

sometimes difficult to apply, but in a case like the present, this much is clear, that so long as the want of control over the cattle remains without any fault of the owner, the causa proxima is that which caused the escape, for the consequences of which he who caused it is responsible. Suppose, for instance, in former times a reclaimed falcon were frightened and escaped. The natural consequence would be that it would be lost altogether, and the person who negligently frightened it would be liable. The natural and proximate consequence was, that it would not be got back at all. So if you have lost control of cattle, and cannot get them back under your control till they have run into danger and are killed, the death is a natural consequence of the negligence which caused you to lose control of them."

ILLUSTRATIONS.-A is passing along the street in his chaise, when the dog of B leaps at his horse; the horse takes fright and becomes unmanageable; in endeavoring to restrain him, a rein is broken; in consequence of this the chaise is dashed against a post and broken. The attack of the dog, and not the breaking of the rein, is the proximate cause of the injury; and under a statute making the owner of vicious dogs liable for damages caused by them, B must pay damages to A: Sherman v. Favour, 1 Allen, 191. The driver of a buggy, in turning from one street into another, got one of the lines entangled under the horse's tail, causing the horse to back and fall into a hole in the embankment on which the street was built. Held, that the muncipality was liable for the consequent injury: Hull v. City of Kansas, 54 Mo. 598; 14 Am. Rep. 487. A wellbroken horse, frightened by the carriage striking raised logs in the traveled part of the highway, became uncontrollable, ran away, and one hundred and twenty-five feet distant threw out and injured the driver. Held, that the defect in the highway was the proximate cause of the injury: Clark v. Lebanon, 63 Me. 393. The balustrade on a flight of stairs in defendant's dry-goods store was obstructed by display figures, so that plaintiff, a customer, was unable to get hold of it, and fell in consequence. Held, that defendant was liable: Larkin v. O'Neill, 48 Hun, 591. An ox escapes from his owner's inclosure upon a railroad track, by reason of the neglect of the company to fence their track at a given point. It is thence driven by an employee of the company into another man's pasture, from which it strays across its owner's land, outside of his inclosure, onto another part of the track, and is there killed, six hours in the mean time having intervened. Held, that the company is liable for the damages, although at the time the ox is killed its locomotive is being driven with proper care: Gilman v. R. R. Co., 60 Me. 235. In consequence of the neglect of A to maintain a fence which he was bound to maintain, the horse of A strayed into the field of B, and there kicked and injured a horse of B. Held, that A was liable to B; the damages were not too remote: Lee v. Riley, 11 Jur., N. S., 527. A, whose duty it is to maintain a division fence, constructs the fence with old wire rope; this decays by rust, and some of the fragments fall on B's land, and are swallowed by B's cow, causing her death. Held, that A is liable to B for the loss of the cow: Firth v. Bowling Iron Co., L. R. 3 C. P. D. 254. A, being under a prescriptive obligation to maintain a fence between his own close and that of B, suffers, unknowingly, such fence to be broken down; by reason of this, B's cow escapes into A's close, and there eats some leaves of a yew-tree, and is killed. Held, that A is liable to B: Lawrence v. Jenkins, L. R. 8 Q. B. 274. A