NOTES OF IMPORTANT DECISIONS.

INJUNCTION-Right oF STRIKERS TO "PERSUADE OTHERS IN EMPLOYMENT TO CEASE WORK.-It has been said in legal articles and sometimes in judicial decisions that it is a conceded right of a body of strikers to use persuasion in drawing away the employees of their former master so long as no violence is used. even "persuasion" has now been placed in the category of acts demanding injunctive interference. It was so held in the recent case of Knudsen v. Benn, 123 Fed. Rep. 636. The court makes this unequivocal declaration :

But

"As this case stands, these individual defendants are not in the employment of the complainants. They have no interest in the complainants' business, and they have no right to interfere with that business in any way. The testimony shows that they are interfering; they admit it themselves. They admit it to the extent that they have been placing 'pickets,' as they call them, to observe who is employed, and for the purpose of inducing such employees to leave the employment of the complainants.

Fellow workmen may agree together to leave at once the service of their employer; but having done so, and being no longer interested in that matter, then, notwithstanding certain dicta in cases that have been read from, it does not seem clear to me that they are acting lawfully when they are persuading the servants of their former employer to break their contracts and leave the service. It is a matter that does not concern them any longer. It is a matter that is apparently injurious to their former employer. It seems to me that such an interference in a matter with which they have no rightful concern and which is injurious to another is not lawful."

DIVORCE-EFFECT OF HUSBAND'S CONNIVANCE OF WIFE'S ADULTERY.-The effect of a husband's connivance of his wife's adultery in one instance on his right to bring a divorce for another act on her part of the same nature is one of the controversial points of the law. 2 Bishop on Marriage and Divorce, p. 116 says: "A husband who connives at or assents to adultery by his wife with one person will be deemed as assenting to it with others, and will not be entitled to a divorce for a subsequent act of adultery with the same or another particeps criminis." So also in Hedden v. Hedden, 21 N. J. Eq. 61. Mr. Nelson in his work on Divorce and Separation, vol. 1, sec. 486, has this to say: "It is doubtful whether these rulings will be followed by modern courts, for it deprives the husband of the right of repentance and reform, and leaves the wife to commit adultery without fear of divorce."

The court in speaking of the rule thus referred to and laid down by some of the authorities, says: "It is a very harsh rule to say the least about it, and the only theory upon which it can be sup

ported is that a husband who consents to an act of adultery of his wife has fallen so low in his moral nature as to be forever unable to repent and reform. And it must be admitted that the degradation of such a man is profound. Yet there are other conditions in which he may be found equally deplorable. Still, it ought not to be the policy of the law to cut off the husband from all inducement to reform, nor, as it were, to license the wife to continue her shameful practices freed from all restraint; and the rule of equity that, when a litigant comes into court, it must be with clean hands, refers only to the matter to be litigated, and no other should be also applied to cases of this character. We feel constrained, for these reasons, to hold that plaintiff is not debarred from asserting his right to a divorce on account of the defendant's adulterous conduct with said Coonfare, notwithstanding it occurred since the former suit, in which it was held he had connived in her adultery with said Derrindenger; it not appearing that he in any way was particeps criminis. And it may be said that such connivance by the husband of an act of adultery committed by the wife with one person, on the ground of which a bill for divorce filed by him has been dismissed, is not an absolute bar to a divorce for a prior act of adultery committed by her with another person, and not known to the husband at the time he brought his former suit. • See also, Morrison v. Morrison, 142 Mass. 361, 8 N. E. Rep. 59, 56 Am. Rep. 688.

DAMAGES BY FLOOD.

Webster defines a flood as "a body of water rising and swelling and overflowing land not usually thus covered; a deluge; a freshet; an inundation."

Floods may be the result of human acts as where waters are accumulated by dams and the dam breaks by reason of faulty construction or lack of repair. They may result from "acts of God" which may be defined to be "any accident due directly and exclusively to natural causes without human intervention, which by no amount of foresight, pains or care reasonably to have been expected, could have been prevented," as in the case of unprecedented rains or cloud bursts. They may also be caused by a combination of human and divine acts as where an extraordinary rainfall causes the escape of stored waters. The greatest difficulty in ascertaining the rule of liability for damages from floods lies in cases such as the last or where movable property is negligently allowed to remain in the path of a flood and the damages 1 Cyclopedia of Law and Procedure, vol. 1, p. 759.

are the result of the union of human and divine agency.

In the first class of floods, the general rule in regard to water is the same as that in regard to any other thing dangerous or liable to do mischief if it escape, viz: One who for his own purposes brings upon his land and collects and keeps there any thing likely to do mischief if it escape must keep it at his peril and if he does not do so is prima facie answerable for all the damages which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default; or perhaps that the escape was the consequence of vis major or the act of God.2

An act of God sometimes called an inevitable and unavoidable accident as heretofore defined where it is the sole and immediate cause of an injury is always a good defense to an action for damages from same." Questions however have arisen as to what rainfalls constitute an act of God. It has been held that heavy and unusual rainfalls are to be anticipated and provided against even though they only occur at long intervals and are not to be regarded as coming within the principle of vis major.1

Ordinary rains have been defined to be all such whether heavy or light as are usual and always to be expected in certain seasons annually, and ordinary freshets of common and periodical occurrence have been held not to be defenses to an action for damages against the builder of a dam on a stream who has not provided for such freshets.5 In O. & M. R. R. Co. v. Thillman, it was attempted to establish a rule that floods which occur as much as twice in five years are not in law such extraordinary floods as will prevent a recovery for damages caused by floods from the person or persons who by negligence

6

or unlawful acts contribute to such overflows

but the rule was not sustained. The general

2 Am. and Eng. Enc. (2d ed.), vol. 8, p. 67; Fletcher v. Ryland, L. R. 2 Exch. Div. 279.

3 Michaels v. Railroad, 30 N. Y. 570, and cases cited; Smith & Co. v. Western Ry. of Ala., 91 Ala. 455.

4 Gleeson v. Midland R. R. Co., 140 U. S. 435; Ill. Cent. R. R. v. Hersner, 45 Ill. App. 143; Texas & Mo. R. R. Co. v. Anderson, 61 S. W. Rep. 424.

John Meister v. Lang, 28 Ill. App. 674; Bell v. McClintock, 9 Watts (Pa.), 119; Ill. Cent. R. R. v. Thillman, 11 Ill. App. 17.

6 143 Ill. 137,

rule has been laid down that freshets are regarded as ordinary which are well known to occur in the stream occasionally through a period of years although at no regular intervals.7

In the last class of cases where the damages result from combined divine and human agency the general rule has been stated to be that the act of God which excuses a defendant and must not only be the proximate cause of the loss but the better opinion is that it must be the sole cause. And where the loss is caused by the act of God if the negligence of the defendant mingles with it as an active and co-operative cause he is still responsible. This is the prevailing doctrine in Missouri as laid down in the leading case of Wolf v. Am. Express Co.8 In the case of Brash v. City of St. Louis, where the arch of a sewer was burst by an unusual rainfall, and negligence of the city, the city was held, liable and Brace, J., said: "The general doctrine on the question in issue on the instructions is thus stated in 1 Shearman & Redfield on

9

Negligence (5 Ed.), sec. 39. "It is universally agreed that if the damage is caused by the concurring force of the defendant's negligence and some other force for which he is not accountable, including the "act of God" or superhuman force intervening, the defendant is nevertheless responsible if his negligence is one of the proximate causes of the damages, within the definition already given. It is also agreed that if the negligence of the defendant concurred with the other cause of the injury in point of time and place, or otherwise so directly contributes to the plaintiff's damages that it is reasonably certain that the other cause alone would not have sufficed to produce it, the defendant is liable, notwithstanding he may not have anticipated the interference of the superior force which concurring with his own negligence produced the damage. But if the superior force would have produced the same damage whether the defendant has been negligent or not, his negligence is not deemed

7 Gould on Waters, sec. 211c.; Gray v. Harris, 107 Mass. 492.

8 43 Mo. 421; Read v. Railroad, 60 Mo. 199; Pruitt v. Railroad, 62 Mo. 529; Davis v. Railroad, 89 Mo. 340; Haney v. Kansas City, 94 Mo, 334; Am. Brew, Ass'n v. Talbot, 141 Mo. 674,

9161 Mo. 433,

or

the cause of the injury. And this is the prevailing doctrine in the this state" (quoting Missouri cases supra). "There is nothing in the rulings in Flori v. City of St. Louis, 10 Turner v. Harr, 11 inconsistent with this doctrine." This part of Judge Brace's opinion was quoted with approval by Judge Marshall in his opinion in the late case of Newcomb v. N. Y. C. & H. R. Ry. Co.12 In that case defendant attempted by proper instruction to the jury to limit its liability to an injury caused solely by the negligence of the defendant, and the court held the instruction erroneous in that it limited defendant's liability to the sole negligence of defendant. On this point Judge Marshall said: "A defendant may be liable even if the accident was not caused by his sole negligence. He is liable if his negligence concurred with that of another or with the act of God or with an inanimate cause and became a part of the direct and proximate cause although not the sole cause."

As to the degree of negligence necessary to render a defendant liable it has been held that the negligence must be such as to have effectively caused the damages. It must have been an efficient cause though it need not be the sole cause. The negligence must be an active agent in bringing about the loss without which agency loss would not have occurred. 13 In this case Judge Ellison quoted from B. & O. R. R. v. School District, 14 as follows: "We apprehend that the concurring negligence which when combined with the act of God produces the injury must be such as is in itself a real producing cause of the injury. In other words, if the act of God in the particular case was of such an overwhelming and destructive character as by its own force and independently of the particular negligence alleged or shown to produce the injury there would be no liability though there was some negligence in the maintenance of the particular structure. create a liability it must have required the combined effect of the act of God and the concurring negligence to produce the injury. The present case affords a fair illustration of the reason for this distinction." In the last

10 69 Mo. 341.

11 114 Mo. 335.

12 169 Mo. 427.

13 Coleman v. Railroad, 36 Mo. App. 476.

14 96 Pa, St, 65,

Το

case the railroad to procure a proper grade made an embankment about twenty feet high across a hollow and constructed therein boxes or culverts to vent the water of the rivulet under the embankment. One of these boxes became clogged and was suffered to remain so because the other two at all times vented the water. A heavy rain occurred which washed dirt and debris down the stream and filled up the culvert. This was discovered by the supervisor of the division on the next day. Two days after he and his gang commenced cleaning out the boxes of the culvert. When the gang had one box entirely clean and the second very nearly so, a rain of great violence began and continued for the space of thirty, or forty minutes and the water rose with great rapidity above the level of the track some two feet and with such force as to wash away the superstructure of the railroad including rails, sleepers, ballast and switch for a double track and also from six inches to two feet of the top of the embankment. The school house of the plaintiff below was on this hollow and carried bodily over the embankment into a neighboring river where it was broken to pieces. The suit was brought for damages thus occasioned. The court continued in reference to these facts: "The defendant's witnesses testified that the force and volume of the water were so very great that it would have required one hundred and twenty such culverts to pass it off. Hence if the three culverts were in the most perfect condition they would not all have prevented the injury, and therefore the fact that they were somewhat obstructed might be quite immaterial." The court held that this testimony of defendant's

witnesses should have been submitted to the jury and that there is no liability on a company for not constructing a culvert so as to pass extraordinary floods. 15

The application of the maxim "causa proxima non remota spectatur" to cases of damages caused by combined divine and human agency has led to some variance in conclusions of the courts in different states. In Michaels v. N. Y. Cent. R. R. Co.16 the defendant received at Albany from the Hudson River R. R. Co. a box of goods to be

15 On this last point see also Berniger v. Sunbury Ry. Co., 203 Pa. St. 518.

16 30 N. Y. 564.

transported to Rochester and delivered to the owners. Instead of forwarding the box immediately it detained the same in its freight house at Albany to await the rendering of a bill for back charges by the Hudson River R. R. Co. While so detained the goods were injured by being wet by an unusual and extraordinary rise in the waters of the Hudson river and it was held that the detention of the goods was negligence on the part of the defendant and that such neg. ligence having concurred in and contributed to the injury of the goods, the defendant was precluded from claiming the exemption from liability which the law would otherwise extend to it. The same conclusion was reached under a similar state of facts in Read v. Spaulding,17 and it was there held that when the carrier is intrusted with goods, and they are injured or lost on the transit, the law holds him responsible for the injury. He is only exempted by showing that the injury was caused by an act of God or of the public | enemy; and to avail himself of such exemption, he must show that he was free from fault at the time.18

In Pennsylvania and Massachusetts a different result was reached in Morrison v. Davis, 19 and Denny v. N. Y. Cent. R. R. Co.,20 both of which cases are commented upon at length in Read v. Spaulding, supra. In Morrison v. Davis goods were carried in a canal boat on the Pennsylvania Canal and were injured by the wrecking of the boat, caused by an extraordinary flood and it was held that the carriers were not rendered liable merely by the fact that when the boat started on its voyage one of the horses attached to it was lame and that in consequence thereof such delay occurred as prevented the boat from passing the place where the accident happened, beyond which place it would have been safe, and the general proposition was decided that the carriers are answerable for the ordinary and proximate consequences of their negligence and not for those which are remote and extraordinary. The court in its opinion assumed that the immediate cause had the character of an in

17 30 N. Y. 630.

18 See also Bostwick v. B. & O. R. R. Co., 45 N. Y. 712; Williams v. Grant, 1 Conn. 487.

19 20 Pa. St. 171.

20 13 Gray, 481.

evitable accident, but that this cause could not have affected the boat had it not been for the remote fault of starting with a lame horse, and it was held that the true measure of liability was indicated by the maxim "causa proxima non remota spectatur." In Denny v. N. Y. Cent. R. R. Co.,21 the railroad received certain wool to transport from Suspension Bridge to Albany. The railroad was negligent in that the wool was detained six days at Syracuse. There was no subsequent delay or negligence, and, upon reaching Albany, the wool was safely and properly stored in the railroad's freight depot. It was held that the rise of waters in the Hudson which did the mischief to the wool occurred at a period subsequent to this and consequently was the direct and proximate cause to which that mischief was to be attributed. The negligence of the railroad was remote; it had ceased to operate as an active, efficient and prevailing cause as soon as the wool had been carried on beyond Syracuse and could not therefore subject it to responsibility for an injury to plaintiff's property, resulting from a subsequent inevitable accident which was the proximate cause by which it was produced. It is to the latter only to which the loss sustained by plaintiffs is attributable.

These cases were followed in Railroad Co. v. Reeves. 22 In this case certain tobacco was received by the railroad at Chattanooga and taken fifteen miles out of that city where the train was arrested, blocked by a landslide and broken bridges and returned to Chattanooga when the water from one of the most sudden, violent and extraordinary floods ever known in that part of the country came over the track and injured the tobacco. The United States Circuit Court of Tennessee which tried the case instructed the jury that if while the cars were so standing at Chattanooga they were submerged by a freshet which no human care, skill and prudence could have avoided, then the defendant would not be liable; but if the were brought within the influence of the freshet by the act of defendant and if defendant or his agent had not so acted the loss would not have occurred, then it was not the act of God and the defendant would be liable; also that if the damage could have been prevented by any means within the power of the

cars

21 13 Gray, 481.

22 10 Wallace, 176.