may be safely used or handled, and that, under such circumstances, the seller is not liable in damages for injuries to the purchaser resulting from the improper use or handling of the article, no matter how little knowledge the purchaser may in fact have had of its properties, or of the manner in which it could not be safely used or handled. It appears clear to us that the vendor's legal duty to such a purchaser can go no further than to give him the identical substance he calls for."

LIABILITY OF OWNERS OF VESSELS FOR TORTS OF MATE, AND INJURIES INFLICTED ON ROUSTABOUTS. A subject of general interest to practitioners in the Mississippi Valley is, to what extent the owners of vessels plying upon those inland waters are liable for injuries inflicted upon the roustabouts, or common seamen, by the mates or petty officers of such vessels.

In a suit brought before Judge E. S. Hammond in the United States District Court for the Western District of Tennessee, it was held that the owners were liable, but only for actual damage. In that case Hall, a rouster, sued Sims, the captain of The General Rucker, for injuries inflicted by the mate, who struck Hall on the head with a monkey wrench. The court held that a roustabout employed in loading a vessel under the command of a mate, who is wounded by the blows of the mate, giver because he does not obey his orders, can recover for the injury against the owner, because that business about which they are both engaged is within the scope of the master's employment, and clearly so. If it were not, the rule of the liability of the master for the willful torts of bis servant while thus engaged would be substantially abrogated. No master intentionally authorized his servant to do any wrong of his own malevolence, passion, or ill-temper, and, presumably, always forbids it, as was actually done in this case, for the mate had orders not to beat the men; and if a want of that kind of authority in the servant exempts the master, there could scarcely arise a case where the liability would exist, and the rule would be narrowed to the exploded doctrine that the master is liable only for the negligence but not for the torts of

his agent. It is a mere controversy about words upon unsubstantial distinctions, for the practical rule is that the master must not employ malevolent, impassioned, or ill-tempered agents, if he does not wish to become liable for the injuries they inflict through the ex• hibition of ill-temper in doing his work." This case stands solitary and alone. It is contrary to the rule of law, pposed to the reason of rule, in conflict with the universal course of the decisions of the courts, state and federal, and is directly in the teeth of a recent decision of the Supreme Court of Tennessee in a case on all fours with the case at bar.2 Moreover, Judge Hammond does not seem to have considered the most important feature in the case before him, and the authorities he cites in his opinion do not support his conclusions or apply to the facts of the case.

The Rule of Law.-In the first place, the relations, duties and obligations between various members of a ship's company are

the maritime law. "The maritime law furnishes entirely different doctrines upon this, as well as many other subjects, from the common law. They (seamen) are liable to different rules of discipline and suffering from landsmen. It is possible, therefore, with any degree of security, to reason from the doctrines of the mere municipal code, in relation to purely home pursuits, to those more enlarged principles which guide and control the administration of the maritime law." In The City of Alexandria, Brown, J., says: "By the maritime law, the mere ordinary negligence of the seaman, though that be the sole cause of the accident, makes no difference in his right to be cured at the ship's expense, and to his wages to the end of the voyage. And as his own negligence does not debar him from these rights by the maritime law, so, conversely, these rights are in no way extended, though his hurts have arisen by the negligent acts of others of the ship's company. This fundamental distinction is nowhere referred to by Judge Hammond nor does he seem to have consid

ered it, none of the cases cited in the opinion dealing with injuries inflicted upon seamen by officers or members of the crew. In the second place, the relation of fellow-servant, which exists between the mate of the ship and the seaman, or rousters, as they are called on vessels plying on the Mississippi river, seems not to have been raised or considered by the court in The General Rucker case, and yet it should have been one of the main defenses relied on. In this, as in many other respects, the doctrines of the maritime law differ greatly from the common law. Judge Hammond appears to have taken it for granted that the mate is the superior of the rouster, and that the wrongful act of the mate, or his negligence, render the owner liable to respond in damages to the injured rouster. This might possibly be the case, so far as negligence is concerned, under the common law, had the parties been foreman and laborer, say; but, under the maritime law, the case is entirely different.

Fellow Servants Who, then, Constitute the Ship's Company Under the Maritime Law, and Who are Fellow-Servants.-In "The City of Alexandria" 6 the chief cook and the steward were held to be fellow-servants, and the owners of the ship were held not liable for injuries resulting to the cook by the negligence of the steward, although the cook was acting under his orders. In United States v. Huff, the mate was held to be one of the crew and subject to the provisions of a penal statute, which, in terms, applied only "the crew." In "The Egyptian Monarch," the second mate and an ordinary seaman were held to be fellow-servants, and the owners not liable for injuries suffered by the seaman on account of the mate's negligence. The court said: "Conflicting decisions on this question may be found in our own courts-federal and state-but numerous and respectable authorities among them classify the subordinate officers of a ship as fellow-servants with the members of the crew, who are subject to their orders. The prevailing opinion is, that when the master is on board the subordinate officers and seamen are fellow-servants."'9

17 Fed. Rep. 390. 713 Fed. Rep. 630.

836 Fed. Rep. 776.

936 Fed. Rep. 776 (citing numerous authorities).

In The Queen Steamship Co. v. Merchant,10 the porter and carpenter were held to be fellow-servants with the stewardess, though working in different departments, and the owners not liable for the injuries to the stewardess arising out of their negligence. In Gabrielson v. Waydell," the captain of the ship was held to be the fellow-servant of a seaman, and the owners not liable for an assault by the captain growing out of the refusal of the seaman to obey orders. All of these cases, except the last cited, deal with mere acts of negligence, but when we come to consider the liability of the master for the tortious acts of fellow-servants towards each other, and for assaults upon members of the crew by the officers, the rule of the law is radically different from that laid down by Judge Hammond, even under the common law.

Master's Liability for Torts.-From the very earliest times in Tennessee it has been held that the master is not liable for the willful torts of his servant. In Puryear v. Thompson2 an overseer, being charged to give a negro slave a good whipping, beat him. to death. The trial judge was asked to charge that, if the master had instructed the overseer to whip the negro until he was humbled and then put him to work, and if the master then left the place of punishment, and the overseer, abandoning all intentions to comply with such instructions, undertook to gratify his own malice and spite against the negro, and in the gratification of this malice killed him, then the master would not be liable. The court held that the refusal of this charge was error, and remanded the case for a new trial, laying down clearly the proposition that such action would be the willful tort of the overseer, for which the master was not liable, it not being within the scope of his employment. In Cantrell v. Colwell,18 Cantrell's wife requested a young man to put a mare belonging to Colwell out of her husband's field. While so doing the young man threw a rock at the mare and broke her leg. The court said: "That the young man was Cantrell's servant; that the scope of his employment was to put the mare out of the field, but in no way could this be tortured to

10 133 U. S. 379.

11 31 N. E. Rep. 969.

125 Humph. 397.

13 3 Head, 474.

imply any authority or command to injure or destroy the animal in so doing. The fair inference would be the exact opposite of this. The act of violence, by which the loss was occasioned, was not done in execution of authority given, but was altogether beyond it, and must be regarded as the willful, wanton and unauthorized act of the servant, for which he, himself, and not the defendant must be answerable." In Ottenville v. Deihl & Lord,14 plaintiff sued the defendant for certain bottles and cases, which he alleged had been willfully and wantonly destroyed by the defendant's servants. The proof showed that the destruction of the property was not commanded by the master, but was due to the personal ill-will of the employees towards a rival concern. The court held: "That the master cannot be responsible for such wrongful conduct of the servant, as he had neither authorized, nor could be supposed to have authorized or expected the servant to do. A liability so extensive would make the master guarantor of the servant's good conduct, and would impose responsibilities which prudent men would hesitate to assume.'

15

This case,

It was

Judge Hammond says, it is doubtful if the Supreme Court of Tennessee would now adhere to, and yet the 5 Humph. the 3 Head, and the 14 Lea cases were all cited with approval by that court as late as 1886 in the case of Smith v. Memphis and A. C. Packet Co., Chief Justice Deadrick delivering the opinion. In that case a mate, hurrying up the roustabouts unloading freight had an altercation with one of them, and during the course of the altercation struck him. held that the act of the mate was not negligence, but a willful, personal tort, that said act was not done within the scope of the servant's employment, and the master was not liable for it. This case, identical with the case of The General Rucker, has never been modified by the Supreme Court of Tennessee and settles the question, so far as that state is concerned. In Spencer v. Kelly, 16 the master of the ship, not the mate, ordered the seaman to leave the wheel in the pilot house. The seaman refused, and resisted the effort of the captain to manage the wheel, who thereupon assaulted him, and afterwards

14 14 Lea, 193.

15 1 S. W. Rep. 104.

16 32 Fed. Rep. 838.

continued the assault upon deck. The court held: "That all employees on a ship are fellow servants under the master, and that for injuries inflicted by such fellow-servants the owner would not be liable. That the master had a right to enforce obedience to his orders by whatever force was necessary in a case of emergency. That if the master punished the seaman for disobedience, after the emergency had passed, such punishment was not within the scope of his employment, and the owner would not be liable.' liable." By a parity of reasoning, where

there was no emergency, no danger threatening the safety of the ship or the crew, the punishing of the rouster by the mate cannot make the owner liable in damages. In the case of Gabrielson v. Waydell," already cited in support of another proposition, the captain assaulted a seaman for refusal to obey orders, the man alleging that he was sick. The court held that such assault was not within the scope of the captain's employment and that it was the tortious act of a fellowservant for which the owner was not liable.

The Reason of the Rule.-The reasoning of the decisions quoted, and of many others that might be cited, is as strong against The General Rucker case as the cases themselves. The torts of the servant cannot subject the master to liability because they are not within the scope of the servant's employment. The master does not guarantee the good temper and benevolence of his servant. If the servant, even while engaged about the master's business, does an act which he is not commanded to do, which the master could not suppose he would do, could not prevent him from doing, and which the proper discharge of his duty did not require him to do, either prudently or imprudently, then such an act is the willful and malevolent tort of the servant, and the master not liable for it.

17 31 N. E. Rep. 969.

R. G. BROWN.

MURDER-UNCONTROLLABLE IMPULSE AS A

DEFENSE.

STATE v. KNIGHT.

Supreme Judicial Court of Maine, August 13, 1901. 1. It is still held by an overwhelming weight of ju dicial authority that, when the insanity of the accused is pleaded in defense, the test of his responsi

bility for crime afforded by his capacity to understand the nature and quality of the art he was doing, and his mental power to distinguish between right and wrong with respect to that particular act at the time he committed it, is the only proper legal criterion; and that, when fully developed and explained to the jury in its application to the special facts and circumstances of different cases, it will always be found adequate to meet the demands of justice and human. ity towards the accused, as well as to insure the protection and safety of the public.

2. It is evident that much of the diversity of opinion or the difference in modes of expression upon this subject arises from a failure to discriminate between that irresistible impulse produced by an insane delusion or mental disease which has progressed to the extent of dethroning the reason and judgment and destroying the power of the accused to distinguish between right and wrong as to the act committed, and that uncontrollable impulse which is alleged to arise from mental disease, and to coexist with the capacity to comprehend the nature and wrongfulness of the act, but which may, with equal reason and consistency, be attributable to moral depravity and criminal perversity.

WHITEHOUSE, J: In this case the respondent was indicted and tried for the murder of Mamie Small. It was not in controversy that the accused, if responsible for his act, was guilty of murder in the first degree, and the only issue raised in defense was the insanity of the defendant. The jury returned a verdict of Guilty of murder in the first degree," and the case comes to this court on exceptions taken by the defendant to the refusal of the presiding justice to give certain instructions:

Third. If the jury find that the prisoner at the time of killing Mamie Small had a diseased mind; that such mental disease caused him to determine to kill her; that by reason of such mental disease he did not then have sufficient will power to refrain from committing the act; and that the act was the product of such mental disease,-he was not responsible for the act, although then coscious that the act was wrong and punishable.

Fourth. Criminal intent involves a sound will as a part of the requirement of a sound mind. That a person is shown to have had, at the time of the act, capacity and reason sufficient to enable him to distinguish between right and wrong as to the particular act he was then doing, does not necessarily make him responsible. If the jury find that the mind of the prisoner at the time of killing Mamie Small was diseased; that by reason of such mental disease his will power was then impaired; that by reason of such impairment of his will power so caused he did not then have sufficient will power to refrain from committing the act; and that the act was the product of such mental disease, he was not responsible for the act, although he then had capacity and reason sufficient to enable him to distinguish between right and wrong as to the act.

The relations between the respondent and the deceased, and the circumstances attending the commission of the homicide, are thus stated in

the charge: "To prove the presentment, in the first instance, the state has introduced evidence tending to show that, upon the 17th day of February last, Bradford Knight was acquainted with Mamie Small. Had married her sister. Had been intimate with her, probably to an undue degree. I think there is no question but that he was, as we say, criminally intimate with her,had sexual relations with her forbidden by law, and amounting to the crime of adultery. That he had known her many years. That on the afternoon of February 17th, shortly after or about dinner time, he was on the other side of the river, in the town of Randolph, inquiring for the residence of the man with whom Mamie Small at that time was boarding. That he went up to the residence, and then came back. He is afterwards seen going to Augusta, then going back to Gardiner, and is seen in the evening upon the common in Gardiner, as you have heard described by a witness, walking back and forth alone in the walks of that common. Then it appears by another witness that Mamie Small, in the evening. left her boarding place upon the Randolph side with a young boy, came across the bridge into Gardiner, and passed up by this common, where he was walking back and forth. That he came out and addressed her, and inquired what the trouble was about, and that she replied to him sharply that if he did not let her alone she would make trouble for him. That she thereupon started to run ahead, and turned into a walk, past a house, into the back door of a house. That he followed on after her, if I remember correctly, cutting across the sidewalk, not following around the turn, but cutting across, reached her, seized her with his left hand, and fired three shots at that close range into her body. That she screamed and fell. That he started and ran back, meeting some one, and telling him that the shots were from another direction, and went on down to his old home in Richmond."

The facts disclosed by the state's evidence, as well as those adduced in behalf of the respondent, were then carefully grouped and critically reviewed by the presiding justice, special attention being called to the following memorandum found on the respondent's person after the homicide, and relied upon as an important evidence in his behalf, to-wit:

"Feb. 17, 1899.

"I am in Gardiner to-night for the purpose of shooting Mamie Small. I have been to Augusta to see my wife to get her to go to Gardiner to see Mamie and talk with her, and see if she can't fix up the trouble between Mamie and I."

It is not in controversy that the instructions actually given to the jury were in entire harmony with the intellectual test of criminal responsibility approved in State v. Lawrence, 57 Me. 574, and cases there cited, and that the refusal to give the requested instructions was fully justified by the doctrine of that case. But it is earnestly contended by the learned counsel for the defendant

that an uncontrollable insane impulse to commit a criminal act may coexist with full knowledge of the wrongfulness of the act, and that the legal test of responsibility for crime afforded by the knowledge of right and wrong, respecting the act committed, has proved to be insufficient and unsatisfactory. It is accordingly insisted that the time has now arrived when this criterion of responsibility can be safely modified by incorporating into the rule the element of irresistible impulse presented in the defendant's requests.

It is undoubtedly true that the progressive development of the medical jurisprudence of insanity more enlightened views have gradually prevailed respecting the functional activity of the mind, and the course of symptoms indicating mental disease, and that just conclusions have more frequently been reached by courts and juries in recent years in regard to the relation of insanity to criminal responsibility. But since the announcement of the decision by this court in State v. Lawrence, supra, in the year 1870, this abstruse and difficult question has been the subject of exhaustive re-examination and renewed study, in the light of all modern discoveries of scientific truth bearing upon it by the most eminent medical and legal jurists in this country and England, and by courts of the highest authority in both countries; and it is still held by an overwhelming weight of judicial authority that, when the insanity of the accused is pleaded in defense, the test of his responsibility for crime afforded by his capacity to understand the nature and quality of the act he was doing, and his mental power to distinguish between right and wrong with respect to that particular act at the time he committed it, is the only proper legal criterion; and that, when fully developed and explained to the jury, in its application to the special facts and circumstances of different cases it will always be found adequate to meet the demands of justice and humanity towards the accused, as well as to insure the protection and safety of the public.

In Brown's Medical Jurisprudence of Insanity," published in England in 1875, and republished in this country, the author critically analyzes the famous answers given by the English judges to the questions proposed to them by the house of lords after the trial of McNaughton in 1843 (sections 10-14), which have formed the basis of the prevailing rule since that time, and the one approved in State v. Lawrence, supra, and then proceeds as follows (section 15): "After the fullest examination of the medical opinions on the other side, we are constrained to hold that the answers of the judges are a most satisfactory statement of the law, and that no better test of responsibility could, at the present time, be devised than that which makes knowledge of right and wrong at the time of the commission of the act the means of judging of the punishability of the person who has committed a criminal offense. Although not a test of insan

ity,' says Dr. Hammond, 'the knowledge of right and wrong is a test of responsibility. * Any individual having the capacity to know that an act which he contemplates is contrary to law should be deemed legally responsible and should suffer punishment. He possesses what is called by Bain "punishability." The only

forms of insanity which, in my opinion, should absolve from responsibility, are such a

degree of idiocy, dementia, or mania as prevents the individual from understanding the consequences of his act, and the existence of a delusion in regard to a matter of fact which, if true, would justify his act.'".

In the elaborate work on Medical Jurisprudence by Witthaus and Becker, published in New York in 1896, is a treatise on the Medical Aspects of Insanity in its Relations to Medical Jurisprudence, by Dr. Fisher, of New York. In that portion of the treatise devoted to "Impulsive Insanity", the author says (volume 3, p. 273) "The practice of the courts in England and in this country, following the trial of MacNaughton in 1843, has been that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts, unless it can be clearly proved that, at the time of committing the act, the accused was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did, that he did not know he was doing wrong. Under these rules, which may be taken as outlining the law on this subject in a large number of the United States, the defense of irresistible impulse to do what is known to be morally wrong and what is legally a crime cannot be set up; for if the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, it is punishable. All forms of crime may be committed under the influence of irresistible impulse,-homicide, suicide, arson, theft, and various acts indicative of sexual perversion. We may also have melancholia or mania associated with this condition, and more rarely delusions and hallucinations. It is not, however, in these latter conditions that we should consider this disease as an entity. In fact, the only safe course is to follow the dictum of the law in this respect, which virtually says that irresistible impulse is no defense unless a symptom of insanity."

Again, in the treatise on Mental Unsoundness in its Legal Relations, in the same volume, by Mr. Becker, the author says, on pages 421, 422: "But evidence of the loss of control of the will, or of morbid impulse, does not constitute a defense, except when it demonstrates mental unsoundness of such a character as to destroy the power of distinguishing right or wrong as to the particular act. This rule is the legal

essence of the whole matter, and it avoids much of the confusion which the German jurists and metaphysicians have infused into this subject.