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§ 22, 36 (1874), provided: “The distinctions between the Actions of ‘Trespass’ and ‘Trespass on the Case’ are hereby abolished; and in all cases where Trespass or Trespass on the Case has been heretofore the appropriate Form of Action, either of said Forms may be used, as the party bringing the action may elect.”
The position of Trespass under Modern Codes, Practice Acts and Rules of Court is strikingly illustrated by Avery v. Spicer,” in which the plaintiff, in an action for cutting trees, alleged ownership and possession of the land, an unlawful entry by the defendants, and acts done thereon to its direct injury by

11. 90 Conn. 576, 98 A. 135 (1916).

172


OFFENSIVE PLEADINGS

Ch. 7

force. One defendant justified his acts under authority of Spicer, both defendants claiming that Spicer owned in fee simple the land upon which the cutting was done and was in pos­session thereof. The Replication denied these allegations.


At the Trial, it appeared that the dispute grew out of a disagreement as to the location of the boundary line between the properties of the contending parties. The plaintiff claimed, as evidenced by title deeds, up to a point beyond which the cutting took place, whereas the defendant Spicer contended that his ownership included the property on which the cutting took place.
The Court instructed the Jury that the plaintiff, in order to be entitled to a Verdict, must prove that he was in actual or construc­tive possession of the land; that it was not necessary that the plaintiff show actual pos­session, but that sufficient proof of posses­sion would be produced by proof of Title and the absence of actual and exclusive posses­sion in another.
On an Appeal, the validity of this Charge

to the Jury was the principal issue. In hold­ing for the defendants and that there was no error, Chief Justice Prentice observed:

“Passing by Trespass with its requirement of possession as a prerequisite of recovery, there was in the Common-Law System a Form of Action providing for the redress of an injury suffered by one having an interest in property, but not having the possession.

By an Action of Trespass on the Case one

whose reversionary interest had been invad­ed by a wrongdoer might have redress. But the Action could not be resorted to by one whose interest, instead of being reversion-

ary, was such as the right of possession at­tached to it. A fee owner, for example, might not avail himself of it to redress a wrong done to his property by direct force, express or implied, His interest is posses­sory and not reversionary, as is that of a landlord, remainderman, and the like.

Two pertinent facts of present interest and importance thus appear. The first is that a person whose interest was not reversionary was not permitted to recover f or injury to property unless he could show possession, actual or constructive. The second is but its corollary, to wit, that a title owner disseised could not sue his disseisor, for the latter’s acts of wrongdoing to the property as long as the disseisin continued. The disseisee in such case must either first regain possession by legal action or otherwise, and then bring his Action of Trespass for the injury to the property, or recover for those injuries as an incident of his action to regain possession. He could not sue the disseisor for the tort independently until he had come into posses­sion. . . - The substitution of our Prac­tice Act for the Common-Law System of Pleading has not changed the situation save as it has abolished certain formal distinc­tions and employed a new nomenclature. The same facts will entitle one to the same redress as before, and to no other redress.” 12


It thus appears that although there is a change, in name, substantively the require­ments for bringing an Action under Modern Codes, Practice Acts or Rules of Court, which would be the equivalent of the Action of Tres­pass, under the Common Law, are still the same.

12. 90 coun. 570, 578, VS A. 135, 136 (1916).

Sec.

CHAPTER 8



TILE ACTION OF TRESPASS ON THE CASE1

84. Scope of the Action.

85. Case Distinguished From Trespass.

86. Election Between Trespass and Case.

87. Form of the Declaration in Trespass on the Case.

88. Declaration in Trespass on the Case—Essential Allegations:

(1) In General.

89. Declaration in Trespass on the Case—Essential Allegations:

(2) The Plaintiff’s Right, Title, Interest or Possession.

90. Declaration in Trespass on the Case—Essential Allegations:

(3) The Facts Showing the Existence of a Legal Duty on the Part of the Defendant.

91. Declaration in Trespass on the Case—Essential Allegations:

(4) The Defendant’s Wrongful Act in Breach of His Duty.

92. Declaration in Trespass on the Case—Essential Allegations:

(5) The Damages.

93. Particular Applications of Case as the Great Residuary Common-Law Remedy for Various Wrongs.

94. Anticipating Defenses in Case.

95. The Expansionistic Character of Case.

96. Status Under Modern Codes, Practice Acts and Rules of Court.

SCOPE OF THE ACTION

84. An Action on the Case lies to recover damages:


(I) For Torts not committed by force, ac­tual or implied;
(H) For Torts committed by force, actual or implied, where:

(A) The injury was not im­mediate, but consequen­

tial;


1. In general, on the History and Development of Trespass on the Case, see:
Treatises: Holmes, The Common Law, Lecture I, The Early Forms of Liability (Boston, 1881); Martin, Civil Procedure at Common Law, c. III, Personal Actions Es Delicto, Art. III, Trespass on the case, 75 (St. Paul, 1905); 3 street, Foundations of Legal Liability, c, XVIII, The Action on the Case, 245

•(Northport, 1906); Id., C. XIX, The Action on the Case, 268; Jenks, Short History of English Law, c. x, contract and Tort, 130 (Boston, 1918); Davies, ‘The Baronial Opposition to Edward II (Cambridge,



(II) For Torts committed by force, actual or implied, where—Cont’d

(B) The subject matter affected was not tangible, or
(C) The interest in the property affected did not give the

right of possession.
Case is the Great Residuary Remedy of the

Common Law covering in general non-violent wrongs. In the Field of Tort the Actions of
1918); 2 Holdsworth, History of English Law, c. IV, 365 (4th ed. Boston, 1931); Maitland, The Forms of Action at Common Law, Lecture VI, 68—68 (Cam­bridge, 1948); Morgan, The study of Law, e. VI, Trespass on the Case, 105 (2d ed. Chicago, 1948); Fifoot, History and Sources of the Common Law, C. XV, The Development of Action on the Case, 66 (Lon­don, 1949); Id., c. IX, Trespass and Case, 184;

ralfy, The Action on the Case (London, 1951); Wil­liams, Liability for Animals (Cambridge, 1929); Plucknett, A. Concise History of the Common Law,



IV, Liability, Civil and Criminal, 463—475 (5th ed,, Boston, 1056).

173

174
Trespass and Trespass on the Case are supple­mentary to each other; and it may be said that, in general, Case lies where no other theory or Form of Action is available, though it is sometimes concurrent with other forms. The Statute of Westminster 11 (1285) authorized the Clerks in Chancery to issue New Writs in cases similar to, but not identical with, cases in which Writs had been previously issued. Various the­ories have been advanced as to the effect of this Statute upon the development of the action of Trespass on the Case.



Trespass and Case as the Source of Our Tort

Law
AT Common Law civil injuries were divid­ed into two kinds, the one without force or violence, such as deceit, libel and slander, or the detention of goods; the other, coupled with force and violence, such as assault and battery or false imprisonment. This distinc­tion between private wrongs resulting from forcible injuries and those without force arose out of the Forms of Action or Reme­dies which were available. The two great Remedies which thus divided the Field of
Articles: Wigmore, Responsibility for Tortlous Acts, 7 Harv.L.Rev. 315, 383, 441 (1894); Boblen, The Moral Duty to Aid Others as a Basis of Tort Liabil­Ity, 541 Ii. of Pa.L.Rev. 217, 316 (1908); Veeder, The History of the Law of Defamation, 3 Select Essays In Anglo-American Legal History, 446 (Boston, 1909); Jenlrs, On Negligence and Deceit in the Law of Torts, 26 L.QJlev. 159 (1010); Ames, Lectures on Legal History; Law and Morals, Lecture VII, 442 (Cambridge 1913); Terry, Negligence, 29 Barvt. Rev. 40(1915); Smith, Tort and Absolute Liability, 30 Harv.L.Bev. 241 (1917); Issacs, Fault and Lia­bility, 31 Harv.L.Eev. 954 (1918); Goodrich, Pernia­tent Structures and Continuing Injuries—The Iowa Rule, 4 Iowa L.Bul. 65 (1918); Smith, Liability for Substantial Physical Damage to Land by Blasting, 33 Harv.L.Rev. 442 (1920); Albertsworth, Recogni­tion of New Interest in the Law of Torts, 10 Calif. LEer. 461 (1922); McConniclr, Damages for Antici­pated Injury to Land, 37 Harv.L,Rev. 574, 593 (1924); Winfleld, The Myth of Absolute Liability, 42 L.Q.ltev. 87 (1926); Winfield, History of Negli­gence In the Law of Torts, 42 LQ.Rev. 184 (1920); Asterburn, The Origin and First Test of Public Call­Ings, 75 Di of Pat.Rev. 411 (1927); Fluckuett, Case and the Statute of Westminster II, 31 Col,L.Rev. 778 (1931); WInfleld and Qoodhart, Trespass and

Tort are Trespass and Trespass on the Case. And it may be added that the modern theory of Tart Liability is the joint product of these two Actions.


From the nucleus of violent wrongs, orig­inally remediable alone by the Action of Trespass, remedies were extended to cover non-violent injuries under the great residu­ary Action of Trespass on the Case, popular­ly referred to merely as “Case.” The Ac­tion was not based on any distinct theory of wrong except the supplementary and exclu­sory one, covering all non-violent injuries, that is, those not falling within the theory of trespass. Case proceeded either by analogy to Trespass, where there was an indirect ap­plication of force, or on the general Common-Law principle of affording a remedy for every wrong, even though without violence, direct or indirect. There was and there is still no strict limit to this action and it is the vehicle which the Judges in England and America have used in constantly expanding the Scope of Tort Liability5 and in giving
Negligence, 49 L,Q.Rev. 359 (1933); Landon, Case and Westminster Ii, 52 L.Q,Rev. 68 (19541); Phack­nett, The Action on the Case and Westminster II, 52 L.Q.Bev. 220 (1936); Landon, The Action on the Case and the Statute of Westminster II, 52 L.Q.Rev. 68 (1026); Dix, The Origins of the Action of Tres­pass on the Case, 441 ‘Yale U. 1142 (1937); harper, Malicious Prosecution, False Imprisonment and Def­amation, 15 Tex.L.Rev. 157 (1937); Iciralfy, The Humber Ferryman and the Action on the Case, 11 Camb.L.J. 421 (1953).
2. For a comparatively recent example of this proc­ess, see the case of Sims v. Sims, 79 N.J.L. 577, 76 AU. lOGS (11110) in which a case of novel impression was considered involving the Issue as to whether a wife could maintain an Action under New Jersey Law against the defendants for “maliciously en­ticing away the plaintiff’s husband, and thereby alienating from her his affections.” In sustaining the wife’s action, Minturn, 3., declared: “That the Common-Law Courts failed to find a remedy is, un­der the decisions, rather a recognition of the right, than the denial of Its existence. Per it may be said that the history of Common-Law Procedure is largely the history of Substantive Rights, remedi­less at first for lads of a suitable Writ or Precedent in the Begistrum Brevium, until the persistence of

OFFENSIVE PLEADINGS Cli. 8

Sec. 84

TRESPASS ON THE CASE

175


redress for such wrongs as deceit, detention of goods, libel and slander, malicious prose­cution, negligent injuries and nuisance.3
Development of Trespass on the Case

IT should be observed that in the begin­ning the only remedy for Torts was the Ac­tion of Trespass, and that in order to main­tain it, actual or implied violence must be shown. It was formerly thought, that up until the Enactment of the Statute of West­minster H in 1285, there was no Form of Ac­tion or Original Writ which could be invoked to recover Damages for other or nonviolent injuries; that under this Statute the Action of Trespass on the Case arose under which any aggrieved party could sue for damages for any wrong to which Trespass would not apply; that the Action originated in the pow­er given by the Statute to the Clerks in Chan­cery to frame New Writs in consimili casu— that is, in cases similar to, but not identical with, cases in which Writs had been previous­ly issued.


This view of the Action of Trespass on the Case, as being the product of the Statute of Westminster II (1285), has been placed in grave doubt by the latest research on the subject. Fifoot flatly declares that “The Ac­tions on the Case derived, not from the stat­utory powers of Chancery Clerks, but from the Fiat of Judges.” ~ And those authori­ties who agree with Fifoot, point out that when Case underwent its initial development
the demand for a remedy developed the Action of Trespass on the Case as a General Specific in con­simlU casu under the provisions of the Statute of Westmin ster II.’’
The learned judge simply was not conversant with the latest research in the field concerning the alleged re­lationship of the Statute and the Action of Trespass on the Case.
3’ See 3 Street, Foundations of Legal Liability, c. xvIII, The Action of Trespass on the Case, 245 (Northport 1906).
4. Fifoot, History and Sources of the Common Law, c. IV, The Development of the Actions on the Case, 74 (London 1949).

in the last third of the Fourteenth Century, it was founded, not upon Writs issued by the Clerks in Chancery, but upon Writs issued by the Judges under the broad authority of the Common Law, using the Action of Tres pass as the stock for grafting, as illustrated in The Miller’s Case ~ and The Innkeeper’s Case.6

However this may be, the New Writs invented by the Judges to cover the cases were supposed to bear an analogy to Tres­pass and hence received the appellation of Trespass on the Case (bi-evi.a de ti-ansgres­sione super casuin), as being grounded upon the particular circumstances of the case re­quiring a remedy, and in order to distinguish them from the older and parent Action of Trespass; and likewise, for further differen­tiation, the injuries themselves, which were the subject of such Writs, were not called “Trespasses,” but “Torts,” “Wrongs,” or “Grievances.”
The Writs of Trespass on the Case, though invented pro re nata, in various forms, ac­cording to the nature of the different wrongs which called them forth, began, neverthe­less, to be viewed as constituting collectively a New Individual Form of Action. Accord­ingly, this new genus took its place, under the name of “Trespass on the Case,” along­side of the more ancient actions of Debt, Cov­enant, Trespass and the like.
In view of the Origin and Nature of this Action, it is important to note that it is com­prised of several different species, two of which, however, are of more frequent use and of greater significance than any other, to wit, the Action of Trover and the Action of Assumpsit, both of which developed out of Case, and were originally known as Tres­pass on the Case in Assumpsit and Trespass on the Case in Trover, but now referred to respectively simply as “Assumpsit” and
5. Y. B. Mich. 41 Edw. III, f. 24, p1. 17 (1367).
I. V. B. Easter, 42 Edw. III, f. 11, p1. 13 (1369).

176


OFFENSIVE PLEADINGS

Cli. 8


“Trover.” Other Forms of the Action of Trespass on the Case are generally known and designated as “Case” or as an “Action on the Case.”
CASE DISTINGUISHED FROM TRESPASS
85. The distinctions between wrongs which

are included under Trespass and those under Case relate:

(I) To the element of Force, Express or Implied,

(II) Whether the injury is immediate or consequential on defendant’s act,



(III) ‘Whether the liability is for Trespass­es of defendant’s agents,

(IV) Whether possession is interfered with.
ALTHOUGH Case was complementary to Trespass, the two actions were to a certain extent mutually exclusive,7 and in theory dis­tinctly differentiated. Where the factual situation essential to constitute a trespass exists, as, for example, where the act was direct and wilful, the Action must be in Trespass. If, however, there was something else in the factual situation, such as neg­ligence, the plaintiff might have an option as to Case or Trespass. And, of course, where any one of the elements required to constitute a trespass is wanting, the Remedy is in Case, assuming the facts make out a Torts
Distinction Between Trespass and Case—In General

AS we have already seen, where a Tort or Civil Wrong is committed with force, actual or implied, and the matter affected is tangi­ble, as where the person or corporeal prop­erty of another is affected, and the injury is immediate, and not merely consequential, and, in the case of injury to property, the property was in possession of the person


7. Day v. Edwards, 5 P.R. 648, 101 Eng.Rep. 361

(1794).


complaining, the proper remedy to recover damages for the injury is the Aclion of Tres­pass.° If, on the other hand, a Tort is com­mitted without force, actual or implied, or if, though the Act was committed with force, the matter affected was not tangible, or the injury was not immediate, but consequential, or, in the case of injury to property, the plaintiff’s interest in the property was only in reversion, Trespass will not lie, and the proper remedy is Action on the Case.”
The Element of Force

UNLESS the case falls within one of the exceptions which we have already stated, and which will presently be explained more at length, an Action on the Case will not lie for an injury committed with force, but the party injured must sue in Trespass. Tres­pass is excluded, however, if the harm re­sulted indirectly from the act of the defend­ant, or the injury was not to the possession of the plaintiff.

Force is either actual or implied. Assault and Battery, tearing down a fence, or break­ing into a house are examples of actual force, and there is no difficulty in determining that Trespass, and not Case, is usually the only remedy.

In many cases where there is no actual force, the Law will imply force, and the ef­


9. English: Scott v. Shepherd, 2 WE]. 892, 96 Eng.

Rep. 525 (1778); Leame v. Bray, 3 East 593, 602,

102 Eng.Bep. 724 (1803); Gregory v. Piper, 9 B. & C.

591, 109 Ei~g.Rep. 220 (1829); Reynolds v. Clark-c, 2

Ld.Raym. 1399, 92 Eng.Rep. 410 (1725); Illinois:

Painter v, Bal~er, 16 111. 103 (1854); Michigan: Bar­ry v. Peterson, 48 Mich. 263, 12 N.W. 181 (1882);

New Hampshire: Bicker v. Freeman, 50 N.H. 420,

(1870); Vermont: Claim v. Wilcox, 18 Vt. 605

(1846); VirginIa: Winslow v. Beal, 6 Call. (Va.) 41

(1806).
10. English: Ward v. Macauley, 4 TB. 489, 100 Eng. Rep. 1135 (1791); Gordon v. Harper, 7 TB. 0, 101 Eng.Rep. 829 (1796); IllinoIs: Frankenthal v. Camp, 55 III. 169 (1870); Massachusetts: Adams v. Hem­menway, 1 Mass. 145 (1894); MichIgan: Eaton r. WInnie, 20 Mlch. 156 (1870); Barry v. Peterson, 48 MIch. 263, 12 N.W. 181 (1882); Pennsylvania: Cot­teral v. Cummlns, 6 Serg. & B. (Pa.) 343 (1871).

S. Sharrod v. London & North Western Railway Co.,

4 Exeb. 580, 154 Eng.Rep. 1345 (1849).

Sec. 85


TRESPASS ON THE CASE

177


fect will be the same as if there had been actual force, so far as regards the Form of Action. Force, as we have seen, is implied in every Trespass Quare Clausum Fregit. If a man, without right, goes upon another’s land, however quietly and peaceable, the Law will imply force, and Trespass is the remedy, not Case; and the same is true where a man’s cattle stray upon another’s land. Force is also implied in every false imprisonment, and the proper remedy is Trespass, and not Case. And where a wife, daughter, or servant is debauched, or en­ticed away, the Law implies force, notwith­standing their consent, and the husband, par­ent, or master may declare in Trespass.’1 And where a fire is started, and, as an im­mediate consequence, another’s property is destroyed, there is constructive force .‘-~
Generally, as we have seen, a mere non­feasance cannot be regarded as forcible; for where there has been no act there can be no force. There is no force, for instance, in a mere detention of goods without an unlaw­ful taking; or in neglect to repair the bank of a stream, whereby another’s land is over­flowed; ‘~ or in neglect to repair a fence whereby another’s animal escapes on to the land of the person so negligent or elsewhere, and is injured; ‘~ and in these instances Case, and not Trespass, must be the remedy.
11. Chamberlain v. Hazlewood, 5 Mees, & W. 515, 151 Eng.Rep. 218 (1839). As we shall see, he may %vaive Trespass and declare in Case for the eonseqnelltial injury—loss of services or society.
12- Jordan v. Wyatt, 4 Grat. (Va.) 151 (1847).
13. Rinks v. Hicks, 46 Me. 423 (1559). See, also, 1 Chitty, On Pleading! c. II, Of the Forms of Action, 141 (7th ed. Springfield, Mass. 1882).
14. English: Star v. Rookeshy, I Salk. 335, 91 Fag. Rep. 295 (1710); Booth v. Wilson, 1 B. & A. 59, 100 Eng.Bep. 22 (1817); Powell v. Salisbury, 2 Younge, & J. 391, 148 Eng.Rep. 970 (1828); Illinois: Burke v. Daley, 32 Ill.App. 326 (1890); Vermont: Saxton

Bacon, 31 vt. 540 (1850).

For the failure of a railroad company to fence its track, see: Illinois: Kankakee & S. W. B. Co. v. Fitzgerald, 17 Il1.App. 525 (1885); Massachusetts:



The Injury as Immediate or Consequential

Even though an injury may have been committed by force, Case will lie, if it was not immediate, but consequential; for, to sustain Trespass, as we have seen, the injury must have been imnwdiate. An injury is considered as immediate when the act com­plained of, itself, and not merely a conse­quence of that act, occasioned it. But where the damage or injury ensued, not directly from the act complained of, it is consequen­tial or mediate, and cannot amount to a tres­pass.’5


To take an illustration already used, if a person in the act of throwing a log into the highway hits and injures a passer-by, the injury is immediate, and trespass is the prop­er remedy; but if, after a log has been thrown into the highway, some one in pass­ing, falls over it, and is injured, the injury is consequential, and the Action must be in Case.’6
If a person forcibly takes another’s goods, the Action must generally be Trespass. An Action on the Case, however, will also lie at the suit of a seller of goods against a person who, after the sale and before delivery, ford­bly and wrongfully takes the goods, and so
Fames v. Salem & L. B. Co., 98 Mass. 560 (1868):

Vermont: llolden v. Rutland & B. B. Ce., 30 Vt. 297

(1858).
And for the negligent failure to close the gatos on a private right of way, see: Pennsylvania: Nirdling­er v. American Dist. Tel. Co., 240 Pa. 571, 88 A. 0 (1913); Vermont: Gregoir v. Leonard, 71 Vt. 410 45 A. 748 (1899).
15. Michigan: Barry v. Peterson, 48 Mich. 263, 12 N. W. 181 (1882); Massachusetts: Adams v. flenunen­way, I Mass, 145 (1804).
16. Leame v. Bray, 3 East 593, 602, 102 Eng.Rep. 724 (1803).
That Case is the remedy to recover for an injury to one’s vehicle from a stone deposited in the highway, see Green v. Belitx, 34 Mieh. 512 (1876).
In Actions where the injury is occasioned by the forci­ble act of the defendant, If the injury is direct and Immediate, the Action is Trespass, while if conse­quential or mediate, the Action is Case. Reed v. Guessford, 7 Boyce (Del.) 228, 105 A. 428 (1018).

178


OFFENSIVE PLEADINGS

Cit. S


puts it out of the seller’s power to perform his contract, so that the buyer avoids it; for the injury by the loss of the sale is conse­quential. Trespass would lie for the forcible and wrongful taking; Case will also lie for the consequential injury, so that here the two actions are concurrent remedies.’7
If a person lays rubbish so near another’s wall that, as a necessary or natural conse­quence, some of it rolls against the wall, the injury is immediate, and the remedy Is in Trespass.18
If a blow be given to the person or proper­ty of another, the Action must be Trespass, and not Case.15 And if a person willfully drives his horse or carriage against anoth­er’s person or property, Trespass and not Case is the remedy. But where, through negligent and careless driving, and not will­fully, one vehicle is caused forcibly to strike another, it is held that an action on the Case is sustainable for the injury, either to the vehicle or the occupant, though in such a case the injury is immediate upon the vio­lence.2° Trespass would also lie in such a
11. Frankeathal v. tjamp, 55 III. 169 (1870), in which the only ground for reversal was the selection of the wrong Form of Action—Case Instead of Trespass. The explanation of the result probably lies in the fact that the Court was willing to stretch a point in order to avoid a reversal on this barren techni­cality.
18. Gregory v. Piper, 9 B. & 0. 591, 109 Eng,Rep. 220 (1829).
19. In Bicker v. Freeman, 50 N.H. 420 (1870), it ap­peared that the defendant had seized the plaintiff by the arm and swung him violently around, and let hini go, and, that the plaintiff, having become dizzy, involuntarily passed rapidly In the direction of a third person, and came violently in contact with him, whereupon the latter pushed him away, and he caine in contact with a hook and was injured. It was held that Trespass, not Case, was the Remedy. See, also, Lowery v. Manhattan R. Co., 99 N.Y. 158, 1 N.E. 608 (1885); Tuttle v. Atlantic City B. Co., 66 N.J.L. 327, 49 A, 450 (1901).
20. EnglIsh: Williams y, Holland, 10 BIng. 112, 131

Eng.Rep. 848 (1833); Indiana: Sehuer v. Veeder, 7

Elackf. (Did.) 342 (1845); Kentucky: Payne v.

Smith, 4 Dana (Icy.) 497 (1838); MichIgan: Brad-

case2’ And in the case of an injury arising from carelessness or unskillfulness in navi­gating a ship or vessel, if the injury is merely attributable to negligence or want of skill, and not to willfulness, the party injured may, at his election, sue in Case or Trespass.22 In these cases the negligence or unskillful-ness of the defendant is treated as the Cause of Action when Case is brought, while in Tres­pass the act itself is the Cause of Action. By the weight of authority, the rule is not con­fined to these particular cases, but is gen­eral, that where there is an immediate injury to person or property attributable to negli­gence, the party injured has an election either to treat the negligence of the wrong­doer as the Cause of Action, and to declare in Case, or to consider the act itself as the injury, and to declare in Trespass.23


ford v. Ball, 38 Mieb. 673 (1875); Wyant v. Crouse, 127 Mich. 158,86 N.W. 527 (1901); New Hampshire:

Bicker v. Freeman, 50 N.H. 420 (1870); New York:

wilson v. Smith, 10 Wend. (N.Y.) 324 (1838); Mc­Allister v. Hammond, 8 Cow. (N.Y.) 342 (1526);

Vermont: Claflin v. Wilcox, 18 Vt 605 (1846).


21. English: Turner v, Hawkins, 1 Bos. & F. 472, 126 Eng.Rep. 1016 (1796): New York: Wilson v. Smith, 10 Wend. (N.Y.) 324 (1833); McAllister v. 11am-mond, 6 Cow. (N.Y.) 342 (1826); Peansylvaffla:

Strohl v. Levan, 89 Pa. 177 (1861); Vermont: Claflin

v. Wilcox, 18 Vt. 605 (1846).
4’Where an injury is attributable to negligence, al­though it wore the immediate effect of the defend­ant’s act, the party injured has an election, either to treat the negligence of the defendant as the Cause of Action and declare In Case; or to consider the Act Itself, as the cause of the injury, and declare in Trespass.” Richardson, Ci, in Dalton v. Favour, 3 N.H. 465, 466 (1826). See, also, Mullan v. Belbin, 130 Md. 313, 326, 100 A. 384 (1917).
22. English: Rogers v. Imbleton, 2 Bos. & P. (N.E.)

117, 127 EugRep. 568 (1808); Ogle v. Barnes, S ‘I.E.

188, 101 Erig.Bep. 1338 (1799); Turner v. Hawkins,

I Boa. & P. 472, 126 Eag.Rep. 1016 (1796); Moreton

v. Hardern, 4 Barn. & C. 226, 107 Eng.Rep. 1043

(1825); New York: Percival v. Hickey, 18 Johns.

(N.Y.) 257 (1820); Rathbun v. Payne, 19 Wend. (N.

Y.) 399 (1838); Barnes v. Cole & Fitzbugb, 21 Wend.

(N.Y.) 188 (1839),
23. New York: Ella v. Campbell, 14 Johns. (N.Y.) 432 (1817); Vermont: Howard v. Tyler, 46 Vt 083 (1874). See, also, Wells v. Knight, 32 B.!. 432, 80 A.

TRESPASS ON THE CASE

If a person pours water directly upon an­other’s person or land, the injury is immedi­ate and trespass is the proper remedy.24 But if a person stops a water course on his own land, whereby it is prevented from flowing as usual, or if he place a spout on his own building, and in consequence thereof the wa­ter afterwards runs therefrom upon anoth­er’s land or house or person, the injury is consequential, and Case is the proper ac­tion.25 Case also lies where excavations are made by a person on his own land in such a way as tocause the soil of an adjoining pro­prietor to falL2° And it lies for injury to per­son or property communicated by infec­tion.27


If a person entices away, or seduces, or debauches another’s wife, daughter, or serv­ant, the Law, as we have seen, implies force, and the husband, father or master may sue
16 (1911), In which the Declaration was in Trespass rather than Case, and alleged that a stone thrown by the defendant’s blast struck the deceased while he was traveling on a highway, but did not aver whether the act was due to the defendant’s negli­gence.
24’ Reynolds v. Clarke, 2 Ld.Baym. 1399, 92 Eng.Rep.

410 (1725). And where water Is discharged on A’s property, and front there finds its way on to the property of B, B’s remedy is in Case. Nichols v. Ely Beet Sugar Factory (1931) 2 Ch. 84.


25. In the latter case “the flowing of the water, which was the immediate injury, was not the wrongdoer’s immediate act, but only the consequence thereof, and which will not render the act itself a Trespass or Immediate wrong.” 1 Chitty, On Pleading, e. II, Of the Forms of Action, 142 (17th ed. Springfield, Mass. 1882). See, also, following eases: English:

Reynolds v; Clarke, 1 Str. 635, 93 Eng.Bep. 747 (1788); 2 Ld.Eaym. 1399, 92 Eng.Rep. 410 (1725); Howard v. Bankes, 2 Burr. 1114, 97 Eng.Rep. 740 (1760); Illinois: Winklcr v. Meister, 40 Ill. 349 (1869); Nevins v. PeorIa, 41 lU. 502 (1860); Michi­gan: Hamilton v. Plainwell Water-Power Co., 8] Mich. 21, 45 NW. 648 (1890); New York: Arnold v, Foot, 12 Wend. (NY.) 330 (1834).

in trespass for the injury.26 Or he may at his election treat the loss of society or serv­ices, and not the defendant’s act, as the in­jury, and, as that is merely consequential, sue in Case.2°
If a wild or vicious beast, or other danger­ous thing, is turned loose or put in motion, and mischief immediately ensues to the per­son or property of another, the injury is im­mediate, and Trespass, not Case, is the rem­edy.3° But if a vicious animal is kept with knowledge of its propensities, or a dangerous substance, like explosives or poison, is negli­
28. Chamberlain v. Ilazlewood, 5 M. & W. 515, 151

Eng.flep. 218 (1830); Tullidge v. Wade, 3 Wils. IS,

95 Eng.Rep. 909 (1769). See, also, I Street, Founda­tions of Legal Liability, e. XVIII, Interference ~s-iUi

Domestic Relations, 265, 271 (Northport, 1000); 3

Street, Foundations of Legal Liability, e. xviii,

Trespass on the Case, 266 (Northport, 1906).


29. English: Chamberlain v- Hazlcwood, 5 M. & W.

515, 151 Eng.Itep. 218 (1839); Weedon v. Timbrell, 5 P.R. 861, 101 Eng.Rep, 202 (1793); Indiana: Van Vacter v. McKillip, 7 Blaekf. (md.) 578 (1845): Ken­tucky: Jones v. Tevis, 4 Litt. (Ky.) 25 (1823):

Maine: Clough v. Tenney, 5 Greeni. (Me.) 446 (1828); New Jersey: Van Born v. Freeman, 6 N.J. L. 322 (1196); New York: Martin v. Payne, 9 Johns. (N.Y.) 387 (1812); Moran v. Dawes, 4 Cow. (N.Y.) 412 (1825); North Carolina: McClure’s firs v. Mil­ler, 11 NC. 133 (1825); Pennsylvania: Beam v. Bank, 3 Serg. & B. (Pa.) 215 (1817); Wilt v. Vickers, S Watts (Pa.) 227 (1839); Legaux v. Feasor, I Yeates (Pa.) 586 (1795); South Carolina: Haney v. Town­send, 1 MeCord (S.C.) 206 (1821); Virginia: I’arker v. Elliott, 6 Munf. (Va.) 587 (1820).
30. English: Leame v. Bray, 3 East 593, 596, 102 Eng,Bep. 724 (1803); Mason v. Keeling, 12 Mod. 333, 88 Eng.Bep. 1360 (1699); Beckwith v. Shardike, 4 Burr. 2002, 98 Eng.Rep. 91 (1767); Maine: Decker v. Gammon, 44 Mo. 322 (1857). Thus, where a light­ed squib was thrown into a market place, and, be­ing thrown about by others in self-defense, ulti­mately injured a person, the injury was considered as the immediate act of the first thrower, and a Trespass, the new direction and the new force given it by the intermediate persons not being a New Trespass, but merely a continuance of the original force, Scott v. Shepherd, 2 Wm.Bl. 892, 96 Eng.Bep. 525 (1773). See, also, flicker v. Freeman, 50 N.H. 420 (1870). Cf. Russo v. Dinerstein, 138 Conn. 220, 83 A.2d 222 (1951).

Sec. 85


179

26- City of Pekin v. Brereton, 67 III. 477 the party may elect to bring Trespass. Strickland, 47 MIeh. 389, 11 N.W. 210

(1873). Or

Buskirk v.

(1882).

27. Eaton v. WinnIe, 20 MIch. 156 (1870).

180

OFFENSIVE PLEADINGS

Cit. 8

gently left exposed, and a person is thereby injured, the remedy is in Case.3


And where a person negligently causes the burning of another’s property, as where a fire is set by sparks from a railroad com­pany’s locomotive, or where a man starts a fire on his own land and it reaches and burns adjoining property, Case is the proper action?2
As we have seen, if a person’s cattle stray on another’s land and cause injury, Trespass by the latter is the proper remedy.33 If, how­ever, the cattle got out because of the owner’s neglect of his duty to repair fences, the per­son may treat this neglect as his Cause of Action, and bring Case for the consequential injury; ~‘ or he may sue in Trespass as in other cases, treating the Trespass as his Cause of Action.35
Intangible Property or Rights

AS we have shown, in treating of Trespass, where the property or right injured is in­tangible, as the right to reputation, or health and comfort, or incorporeal real property, the injury can never be considered as committed with force, however malicious and however contrived, for the matter injured cannot pos­sibly be affected immediately by any sub­stance. Case, therefore, and not Trespass,


31. English: Mason v. Keeling, 12 Mod. 333, 88 Eng.

Rep. 1360 (1699); Sarch v. Blackburn, 4 Car. & P.

297, 172 Eng.Rep. (1830); Alabama: Burden v. Bar­nett, 7 Ala. 169 (1844); Illinois: Stumps v. Kelley,

22 Hi. 140 (1859).


32. Illinois: Burton v, MeCIellan~ 2 Scam. (Ill.) 434

(1840); Massachusetts: Barnard v. Poor, 21 Pick.

318 (1838); IllInois: Armstrong v. Cooley, 5 Gil.

(III.) 509 (1849); Vlrgiala: Jordan v. Wyatt, 4

Grat, (Va.) 151 (1847).
33. Wells v. Howell, 19 Johns. (N.Y.) 385 (1822).
34. Star v. flookesby, 1 Salk. 335, 91 Eng.Rep. 295 (1710). See, also, Mason v. Keeling, 12 Mod. 333, 88 iing.Rep. 1360 (1609); Decker v. Gammon, 44 Me. 322 (1857).
35. English: Star v. Rookesby, I Salk. 335, 91 Eng. Rep. 295 (1710); New York: Wells v. Howell, 19 Johns. (N.Y.) 385 (1822).

must be the remedy.36 An Action on the Case is the remedy for libel or slander; ~ for injury to health or comfort from a nui­sance; 38 for obstructing a private right of way,30 or a public highway,4° or navigable river,4’ and causing special damages to an individual; or for interference with any other easement, as by obstructing light and air through ancient windows by an erection on adjoining land.42 Case is also the proper remedy for diversion of, or other injuries to, water courses or waters, where the plaintiff is not the owner of the soil, but is merely entitled to the use of the water.’3 And it will lie for infringing a copyright, patent, or trade-mark,44 though a bill in Equity for an


36. Union Petroleum Co. v. Blive,, Petroleum Co., 72 Pa. 173 (1833).
37. Pollard v. Lyon, 01 13.8. 225, 23 LEd, 308 (18Th.
3L Nevins v. Peoria, 41 111. 502 (1866).
39. Maryland: Wright v. Freeman, 3 Bar. & J. (Md.)

487 (1823); New Jersey: Osborne v. Butcher, 26 N.

J.L. 308 (1857); New York: Lansing v. Wiswall, S

Denlo (N.Y.) 213 (1818); Lasnbert v. Roke, 14 Johns.

(N.Y.) 383 (1817); Pennsylvania: Jones v. Park, 10

Philadelphia (Pa.) 165 (1874); Okcson v. Patterson,

29 Pa.Sta.Rep. 22 (1857); Vermont: Wilson v. Wil­son, 2 Vt. 08 (1829).
40. English: Grensley v. Codling, 2 lling. 261, 130 Eng.Eep. 307 (1824); Illinois: City of Pekin v. Brereton, 67 Xl). 477 (1873); New York: Lansing v. Wiswall, 5 Denjo (N.Y.) 213 (1818); Vermont: Wil­son v. Wilson, 2 Vt. 68 (1829).
41. Englisb: Rose v. Miles, 4 M. & 8. 101, 105 Eng, Rep. 773 (1815): Michigan: Bellant v. Brown, 78 Mieh. 294, 44 NW. 326 (1889).
42. Shadwell v. Hutchinson, 2 Barn. & Adol. 97, 109 Eng,Bep. 1079 (1831). See, also, Blunt v. McCor­mick, 3 Denjo (N.Y.) 283 (1846).
43. English: Williams v. Morland, 2 Barn. & C. 910.

107 Eng.Rep. 620 (1824); Illinois: Ottawa Gaslight & Coke Co. v. Thompson, 39 111. 598 (1864); Mary­land: Shafer v, Smith, 7 lIar. & J. (Md.) 67 (1826);

Pennsylvania: Lindeman v. Lindsey, 09 Pa. 93 (1871); Strickler v. Todd, 10 Serg. & II. (Pa.) 63 (1823).
44. Clementi v. cloulding, 11 East 244, 103 Eng.Rep.
998 (1809); Itoworth v. Wilkes, 1 Camp. 98, 170

Eng,Rep. 880 (1807); Minter v. Mower, C .Adol. &

El, 7&9, 112 Eng.Itep. 282 (1837); Perry v. Skinner, 2

Mees, & W. 471, 150 Eng.Rep. 873 (1837).



Sec. 86

TRESPASS ON THE CASE

is’

injunction and an accounting is the usual remedy.


If the injury is to corporeal property, and is immediate, and committed with force, case will not lie merely because that property was the means by which an incorporeal right was enjoyed. Thus, where, by Legislative Author­ity, a dam has been erected and maintained in a navigable river in connection with a mill, and the dam is wrongfully cut away by another, Case will not lie on the ground that an incorporeal right has been injured. “The ground on which the Form of Action was endeavored to be maintained,” it was said in an Action on the Case for such a wrong, “was that the right to erect the dam, for an injury to which the action was brought, was a franchise, and incorporeal hereditament, and that for an injury to property, or right of that description, Trespass tvill not lie. The principle here adverted to does not apply to the case. The right to erect the dam is a franchise; it is conferred by the legislature, the sovereign power; it is an incorporeal right, but the dam itself is not a franchise, nor is it incorporeal. The right to keep a ferry, or to erect a bridge, or to navigate a particular river or lake by steam, may be a franchise; but the bridge itself, or the boats and machinery employed in the ferry, or the navigation of the river, may, notwithstand­ing, be the subjects of Trespass. ‘ * * So far as the incorporeal right is invaded, the re­dress is by Action on the Case. But when Vis­ible, tangible, corporeal property is injured, if the injury is direct, immediate and willful, Trespass is the proper Form of Action, al­though that property may be connected with, or be the means by which an incorporeal right is enjoyed.” ‘~
ELECTION BETWEEN TRESPASS

AND CASE

86. When an injury results directly from a Negligent Act, the injured party has an Elec­tion of Remedies. The injured party may main-

tam an Action in Trespass, relying upon the fact that the injury resulted directly from the act; or he may maintain an Action of Tres. pass on the Case relying upon the negligence as the basis for the action.


WHILE Trespass and Case were designed to apply to different factual situations, as we have seen, there came a time in their de­velopment, when the effort to distinguish the two actions on the basis of proximity, broke down, and it was realized that a single tort­ious act might be at one and the same time a direct trespass and an injury resulting from negligence, actionable on the basis of a legal principle other than that effectuated by the Action of Trespass. Thus, in Dalton v. Favour,46 where the plaintiff was wound­ed by the accidental discharge of a gun held by the defendant, the wrong contained all the elements of Trespass. But looked at from another viewpoint, or with a fuller understanding of the facts, the act may be the foundation of another tort. In such a situation the injured person sues in Trespass on the basis of a direct and forcible injury, or he may elect to treat the tort as the result of negligence in maneuvering the gun, and hence declare in Case.4’ When, therefore, in Leame v. Bray,48 there was a collision, which was caused by negligence which combined facts of force, direct injury, as well as in­fringement of possession there was clearly a Trespass. But the same factual situation might be treated as the consequences of an anterior tort, to wit, the guilty party’s neg­ligent driving, which might be regarded as a wrong of another species for which the remedy might be Case and not Trespass. It thus appears that the injured party has a choice of remedies, as was held in Williams
4°. 3 N.H. 465 (1826).
47. New York: Buns v. Campbell, 14 Johns. (N.Y.) 432

(1817); New Hampshire: Dalton v. Favour, 3 N.H.

465 (1826); Vermont: Waterman v. Hall, 12 Vt. 128

(1843).

4Z. Wilson v. Smith, 10 wend. (N.Y.) 324 (1833).



48. 3 East. 593, 102 Eng.Hep. 724 (1803).

182


OFFENSIVE PLEADINGS

Ch. 8

v. Holland,49 according to the view he takes of the wrongdoer’s conduct; he may sue in Trespass for the forcible wrong, or make the negligence of the defendant the ground of his action and declare in Case. Other acts trespassatory in their character may be in­jurious because of their indirect results, as in the case of the seduction of a man’s wife, or daughter, in which instance Case would be the proper remedy, the plaintiff making the consequences of the act—the loss of services

—the gist of his Complaint.50 But clearly, the plaintiff-husband may elect to treat the direct injury to his wife or daughter as the basis of the action, in which case Trespass is the proper remedy.5
FORM OF THE DECLARATION IN

TRESPASS ON TUE CASE


87. As the action of Trespass on the Case was the Great Residuary Remedy of the Com­mon Law, the forms in which it has found expression are as varied as the wrongs for

which it has afforded a remedy.
A Form of a Declaration in Trespass on the Case as a remedy for a personal injury is set forth in this section.
DEcLARATION IN ThEspAss ON TUE CASE FOR PERSONAL INJURY
iN THE QUEEN’S BENCH the 15th day of June, in the year of our Lord 1845.
LANCASHIRE (Southern Division), to wit,—Thomas Moody (the plaintiff in this suit), by Frederick Jones, his attorney, com­plains of William White (the defendant in
49. English: 10 fling- 112, 131 Eng.Rep. 848 (1833);

New York: Percival v. Hiekey, IS Johns. (N.Y.) 257

(1820); Vermont: Clallin v. Wilcox, 18 Vt. 605

(1846).
50. Moran v. Dawes, 4 Cow. (N.Y.) 412 (1825).


Si. English: Woodward v. Walton, 2 Bos. & P. (NB.)

476, 127 Eng.Rep. 715 (1807); Diteharn ;‘. Bond, 2

M. & 8. 426, 105 Eng.Rep. 443 (1814); Chamberlain

v. Hazlewood, 5 M. & W. 515, 151 Eng,Bep. 218

(1839); Illinois: Yundt v. Rartrunft, 41 111.9 (1866):

Massachusetts: Bigaouttc ~. Paulet, 134 Mass. 123

(1883).

this suit), who has been summoned to answer the said Plaintiff in an action of Trespass on the Case. For that whereas the defendant be­fore, and at the time of the commencement of this suit, and of the injury and damage occurring, as hereinafter mentioned, was the possessor and occupier of a certain messuage, vault, cellar, and premises, with appurten­ances, situated in the town of Liverpool, in the County of Lancaster, and near to a cer­tain common and public footway there, and in which vault and cellar there was a cer­tain hole or aperture opening into the said public footway. Yet the defendant, well knowing the premises, whilst he was so the possessor and occupier of the said messuage, vault, cellar, and premises, with the appur­tenances, and whilst there was such hole as aforesaid, heretofore, to wit, on the first day of May, in the year of our Lord 1845, wrong­fully and unjustly, and contrary to his duty in that behalf, permitted the said hole to be, and continue, and the same was then so bad­ly, insufficiently, and defectively covered, that, by means of the premises, and for want of a proper and sufficient covering to the said hole, the plaintiff, who was then law­fully passing in and along the said footway, then slipped and fell into the said hole, and thereby the left leg of the plaintiff was then fractured and broken, and greatly damaged; and the plaintiff became and was sick, sore, lame, and disordered, and so remained and continued for a long time, to wit, thence hitherto, during all which time the plaintiff thereby suffered and underwent great pain, and was prevented from attending to and transacting his lawful affairs and business, by him during that time to be performed and transacted; and was also, by means of the premises, forced and obliged to pay, lay out, and expend, and did pay, lay out and expend a large sum of money, to wit, the sum of £60 in and about the endeavoring to be healed and cured or the wounds, lameness, sickness, and disorder so occasioned as aforesaid, to



Sec. 90

TRESPASS ON THE CASE

153

the plaintiff’s damage of £200, and thereupon he bring suit, &c.


MARTIN, Civil Procedure at Common Law, 372 (St. Paul, 1905).
DECLARATION IN TRESPASS ON THE CASE

—ESSENTIAL ALLEGATIONS: (1) IN GENERAL

88. The Essential Allegations in Actions

of Trespass on the Case are:
(I) The plaintiff’s Right, Title or Pos­session;
(II) The Facts showing the existence of a Legal Duty on the part of the de­fendant;
(III) A Wrongful Act by the defendant in Breach of his Duty;
(IV) Damages proximately caused by the Wrongful Act.

DECLARATION IN TRESPASS ON THE

CASE—ESSENTIAL ALLEGATIONS: (2)

THE PLAINTIFF’S RIGHT, TITLE, IN­TEREST OR POSSESSION
89. In the case of injury to chattels, plain­tiff’s right or interest in them is usually suff i­ciently described by an averment that they are his goods and chattels, or that he was lawfully possessed of them as his own property.
IN actions for injury to property, the plain­tiff’s right or interest in the thing affected must be clearly stated. In the case of injury to chattels, the plaintiff’s right or interest in them will be ordinarily sufficiently described by an averment that they are his goods and chattels, or that he was lawfully possessed of them as his own property; but ‘1if the plain­tiff sues as a reversioner, he must either state an injury of such a permanent nature, as to be necessarily injurious to his reversion; or if the wrongful acts complained of are not of such a nature as necessarily to result in an injury to the reversionary estate, but only of an equivocal character, the plaintiff must aver that they were done to the dam­age, or prejudice of his reversion; and in the latter case, the want of such an averment, will

be fatal on demurrer; or good cause for ar­resting the judgment.” 52


Where the injury is to intangible personal rights such as reputation or incorporeal property rights, such as an easement and reversion, Case and not Trespass is the prop­er remedy.
Revcrsio’nary Right of Bailor

UNDER the Common-Law Forms of Ac­tion, a bailor could not ordinarily bring an Action of Trespass, Trover or Detinue, these actions being founded upon a violation of pos­session or upon an immediate right of posses­sion.53 Where any permanent injury is done to a chattel, the bailor may maintain an Ac­tion on the Case against a third party for an injury to his reversionary interest.3’ The bailor also has concurrent possessory reme­dies with the bailee, if the bailment is revo­cable by him at his pleasure as in the case of a gratuitous loan of a chaise.55


DECLARATION IN TRESPASS ON THE

CASE—ESSENTIAL ALLEGATIONS; (3)

THE FACTS SHOWING THE EXISTENCE

OF A LEGAL DUTY ON THE PART OF



THE DEFENDANT

90. In many cases it is necessary to State



Facts showing the existence of a duty owing from the defendant to the plaintiff, as where
52. Hornblower C. J., in Potts v. Clarke, 20 N.J.L.

536, 541 (1845), citing Jackson v. Pesked, I Man. & Sd. 234, 105 Eng.Rep. 88 (1813). See, also, the fol­lowing eases: Illinois: City of Chicago v. MeDon­ough, 119 111. 85, 1 N.E. 331 (1854); New Hamp­shire: George v. Fisk & Noreross, 32 N.H. 32 (1855).


53. English: Withy v. flower [N.P.1649), I Grays Cases on the Law of Property, 241 (2d ed. Cam­bridge, 1005—00).
54. English: Ward v. Macauley, 4 T.R. 489, 100 Eng.

Rep, 1135 (1791); Go,’don v. Harper, 7 T.R. 9, 101

Eng.Rep. 829 (1706); Hall v. Pickard, S Camp. 157,

170 Eng.Rep. 1350 (1812); Florida: Bueki v. Cone,

25 Fla. 1, 6 So. 160 (1878); Massachusetts: Ayer v.

Bartlett, 9 Pick. (Mass.) 156 (1820); New Jersey:

New York, L. E. & W. H. Co. v. New Jersey Elec.

trie fly. Co., 60 N.J.L. 338, 35 AU. 828, 43 LILA. 849

(1859).

55. Lotan v. Cross, 2 Camp. 464, 170 Eng.Bep. 1219



(1810).

I

OFFENSIVE PLEADINGS

it arises from the relation of passenger and carrier or master and servant, or where the de­fendant was in control of some dangerous ma­chinery or a vicious animal.
THE Declaration in Trespass on the Case must not only allege a right or interest in the plaintiff but it must also set forth a duty existing on the part of the defendant, and a violation of that duty. If, however, the right which is violated is that of personal security, this need not be stated.56 It is usually neces­sary to state somewhat fully the facts and circumstances showing the existence of a duty toward the plaintiff on the part of the defendant, the neglect or breach of which would be an injury to the plaintiff.57
Thus, in an action for negligent injury, it must appear that the plaintiff was in a situa­tion where the defendant owed him a duty to exercise due care for his safety, as that the defendant was in control of machinery or other agency causing danger to the plain­tiff, for which the defendant was responsible. A bare allegation that the defendant owed a legal duty to the plaintiff is a mere conclu­sion of law and hence worthless; the facts creating the duty must be alleged, as that the relation of carrier and passenger exist­ed.55 The existence of the defendant’s duty
50. In such a case, as in Trespass ni at armis for in­juries to persons, the plaintiff’s Allegations com­mence with a statement of the injury committed, aad no Inducement or statement of his right is necessary.
57. In an Action on the Case, all the facts upon which the plaintiff relies, must be stated in the Dec­laration. Wadleigh v. Katahdin Pulp & Paper Co., 116 Me. 107, 100 AtI. 150 (1917).
See, also, on this point, the case of 5. J. & W. M. Bay­ard v. Smith, 17 Wend. 88 (1837), in which Nelson, C. I., said: “All the circumstances essential to sup­port the Action must be alleged, or in substance ap­pear on the face of the Declaration.”
5$. English: Seymour ‘v. Maddox, 16 Q.B. 326, 117

Eng.Rep, 904 (1851); Alabama: Ensley Ry. Co. v.

Chewning, 03 Ala. 24, 9 Se. 458 (1891); Illinois:

City of Chiengo v. Sels, Schwab & Co., 202 III. 545,

67 N.E. 388 (laos); Mackey v. Northern Mill Co.,

210 Ill. 115, 71 N.E. 448 (1904); Maryland; Macn-

toward the plaintiff must appear from facts or circumstances from which the law infers such duty, as where the defendant’s liability is based upon his ownership or control of the premises upon which the injury occurred and his duty to furnish employees a safe place to work59
DECLARATION IN TRESPASS ON THE

CASE—ESSENTIAL ALLEGATIONS 1 (4)

TUE DEFENDANT’S WRONGFUL ACT

ZN BREACH OF MIS DUTY
91. To show a Breach of Duty, the defend­ant’s Wrongful Act and the mental conditions
ner v. Carroll, 4G Md. 193 (1877). See, also, 14 Cyc. 331, 332; 29 Cye. 566.
In Gillman v. Chicago Rys. Co., 268 Ill. 305, 109 N.E. 181 (1915), it was held that in an Action of Tort in a fourth class case in the Municipal Court of Chi­cago the statement of claim must show a Cause of Action based on a Breach of Legal Duty by the de­fendant, such, for example, as facts showing the re­lation of carrier and passenger, a duty owed by the defendant to the plaintiff, and neglect of that duty by the defendant or its servants in the scope of their employment, and damage to the plaintiff as the re­sult of that neglect. The Court emphasizes the function of the Statement of Claim, which is the substitute for a Declaration, as the basis of a Judg­meat, and the insufilcieney of the statement of clainr may be availed of on a Writ of Error even in the’ absence of a Demurrer.
50- A Declaration by an employee against a corpora­tion, his employer, for injury by a grindstone burst­ing should allege; (1) the relation, that plaintiff was in the employ of the defendant and was its servant, and was subject to its orders and direc­tions in his work; (2) the duty of the defendant to furnish safe appliances and place to work; (3) the negligent acts of defendant hs permitting the rind­stone to he and remain in a dangerous condition, showing how it was defective and why dangerous, and that defendant knew or ought to have known of the defects; (4) the causal connection between the negligence and the injury; (5) the due care of the plaintiff (in some Jurisdictions) and the fact that plaintiff did not know of the danger and was not chargeable with knowledge of It; (6) the damages. What Allegations show a Breach of the master’s duty to furnish servant a safe place to work, see Sargent Co. v. Baublis, 215 Xli. 429, 74 N.E. 455 (1905); Raxworthy v. Heisen, 274 XII. 398, 407, 113 N.E. 699 (1918); Vogrin v. American Steel & Wire Cc., 268 III. 474, 105 N.E. 332 (1914); Roniani v. Shoal Creek Coal (Jo., 271 III. 366, 111 N.E. 88 (1916.).

184

Ch. 8

Sec. 91


TRESPASS ON THE CASE

185


of responsibility, such as intent or negligence or malice or fraud, must be alleged.
IN Declarations in Trespass, the injury is stated without any averment of the defend­ant’s motive or intent or of the circumstances under which it was committed. In general, in actions on the case, it is necessary to state, not only the wrongful act complained of, but also the wrongful intent, fraud, or negli­gence with which it was done and the cir­cumstances showing that it was wrongful. In some actions the scienter (knowledge) must be alleged and proved, as of the vicious propensity of the dog in an action for keeping a dog accustomed to bite people or sheep. But in an action for debauching a wife or servant it is not necessary to allege or prove that the defendant knew that the female was the wife or servant of the plaintiff.
In actions for negligence there is some conflict whether a general charge of negli­gence, as that defendant so negligently and carelessly operated a car that plaintiff was thrown from the car and injured, is suffi­cient, or whether the facts and circumstances

-showing negligence must be stated specifical­ly.6° When it is said that it is sufficient to


~O. That a General Allegation of Negligence is in­sufficient, see the following cases:
Delaware: King v. Wilmington & N. C. Electric U)’.

Co., 1 Penn. (Del.) 452, 41 AtI. 075 (1895); Illinois:

East St. Louis Connecting fly. v. Wabash, St. L. &

P. fly. Co., 123 Ill. 504, 15 NE. 43 (1858); New Jer­sey: Race v. Easton & A, It. Co., 62 N.J.L. 536, 41

A. 710 (1898).
That a General Allegation may be permitted, see:

Illinois: Chicago City fly. Co. v. Jennings, 157 Ill.

274, 41 N.E. 629 (1895); City of Chicago v. Selz,

Schwab & Co., 202 Ill. 540, 67 N.E. 386 (1903);

Greinke v. Chicago City fly. Co-, 234 111. 564, 85 N.E.

327 (1908).


That a general charge of negligence is sufficient After verdict, see: Chicago City fly. Co. v. Shreve, 226 Xli. 536, 80 N.E. 1049 (1907).
And in Illinois, it is sufficient to allege that the de­fendant negligently and carelessly propelled the en­gine with great force against certain cars where the plaintiff was working with tile knowledge of the defendant. Illinois Cent. Ry. Co. v. Aland, 192 Iii.

plead negligence generally, it is usually meant that the pleader, having set out the specific facts showing a duty of care and acts causing injury, may state generally that such acts were negligently done. A mere general aver­ment of negligence is insufficient.6


In the case of a passenger injured in a
street car collision, it will be sufficient for the declaration to show that the plaintiff was a passenger upon defendant’s car, that de­fendant was a common carrier, and that de­fendant failed to perform its duty to carry safely, by permitting the car to collide with another of defendant’s cars. It will not be necessary to plead the facts showing the cause of the collision, as the facts alleged bring the case within the doctrine of res ipsa loquitur,62 and an allegation of negli­gence is unnecessary.61
61. Shipman, Handbook of Common-Law Pleading, c.

10, The Declaration in General—Tort Actions, §~ 93,

94, p. 216 (3rd ed. by Ballantine, St. Paul, 1023).
62. In general, on the various aspccts of the Doctrine of lies Ipsa Loquitur, see:
Treatises: Sham, lies Ipsa Loquitur. Presumptions and Burden of Proof (Los Angeles, 1045) ; id. (2d ed. Los Angeles, 1947).
Articles: Bond, The Use of the Phrase lies Ipsn Lo­quitur, 66 Cent.L.J. 386 (1908); Berry, The Appli­cation of lies Ipsa Le~uitur in Master and Servant Cases, 84 CentL.J. 67, 53 caa.LJ. 104 (1917); Beck­el and Harper, Effect of the Doctrine of lies Tpsa Loquitur, 22 Ill.L.Rev. 724 (1928); Nibs, Pleading lies Ipsa Loquitur, 7 N.Y.U.L.Q.Rev. 415 (1930); Carpenter, The Doctrine of lies Ipsa Loguitur, I U. ChiLlier. 519 (1934); Prosser, lies Ipsa Loquitur:

Collisions of Carriers with Other Vehicles, 30 JIlL. Rev. 980 (1936); Rosenthal, The Procedural Effect of lies Ipsa Loquitur in Now York, 22 Corn.LQ. 39 (1936); Prosser, The Procedural Effect of lies Ipsa Loquitur, 20 Minn.LRev. 241, 271 (1036); Carpen­ter, The Doctrine of lies Ipsa Loquitur in Califor­nia, 10 So.Cal.L.flev. 166 (1937); Presser, lies Ipsa Loquitur: A Reply to Professor Carpenter, 10 So.Cal.L.Rev. 459 (1937); Carpenter, lies Ipsa

Loqultur: A Rejoinder to Professor Presser, 10 SoCal.L.Rev. 467 (1937); Malone, lies Ipsa Loqu i. tur and Proof by Inference, 4 La.L.Rev. 70 (1941); Sham, lies Ipsa Loqultur, 17 So.Cal.L.Rev. 187 (1944); 001dm, The Doctrine of lies Ipsa Loqultur

39, 61 N.E. 450 (1901).

63. See Note 63 on Page 186.

OFFENSIVE PLEADINGS Ch. S

The causal connection between the negli­gent act of the defendant and the injury re­in Aviation Law, 18 So.Cal.L.Rev. 15, 124 (1944);

Morris, lies Ipsa Loquitur in Texas, 26 Tex.L.ltev. 257 (1048); Prosser, Rcs Ipsa Loquitur in Califor­nia, 37 Cal.L.Rev. 183 (1949), reprinted In Prosscr

Passenger Litigation, 37 Va.L.Rev. 55 (1951).


Comments: Torts-lies Ipsa Loquitür—Injury to Adja­cent Nerve In the Course of an Operation, 40 Col.L. Rev. 161 (1940). lies Ipsa Loquitur: Applicability to Airplane Accidents: Haasman v. Paeiñc Alaska Air Express, 100 F.Supp. 1 (D.C.Alaska 1951), 37 Cornell L.Q. 543 (1952); lies Ipsa Loquitur: Its Na­ture and Effect, 3 U.Chi.L.Rcv. 126 (1935); ApplI­cation of the rule “lies Ipsa Loquitur” to Actions by Employee Against his Employer. Whitmaker V. Pitenirn, 174 S.W2d 163 (Mo.1943), 9 Mo.L.Rev. 283 (1944); Pood—fles Ipsa Loquitur as Applied to Suits Against the Manufacturer or Preparer of Ar-tides Intended for Human Consumption, 23 Ky.L.J. 534 (1935); lies Ipsa Loquitur as Applied to a Run­away Car—Lewis v. Wolbc, 39 Ky.L.LJ. 328 (1951); Practice and Procedure—The Effect of Plaintiff’s Pleading on the Doctrine of lies Ipsa Loquitur, 31 Micb.L.Rev. 817 (1933); Evidence—Application of lies Ipsa Loquitur to Automobile Accidents—ti) The Doctrine in General, 24 Gco.L.J. 448 (1936): En­denee—Negligence---—Res Ipsa Loquitur—The Doc­trine Applied in nn Action for Malpractice to do away with the Need for Expert Testimony, 9 Brook. L.Rev. 335 (1940); Evidencc—Presumptioas-----Plain. tiff’s Res Ipsa Loquitur Against Defendant’s Pre­sumption of Due Care, I Mleh.L.Rev. 205 (1952); Directing a Verdict for Plaintiff in lies Ipsa Lequi­tur Cases, 22 wash.V.L.Q. 100 (1936); Negligence— lies Ipsa Loquitur—Justification for a Directed Ver­diet in Favor of the Plaintiff, 51 Mich.L.Itev. 119 (1952); Arnold, Instructions on lies Ipsa Loquitur, 13 Mo.L.flev. 217, 221 (1948); Evidence—lies Ipsa Loquitur—Evidence of Specific Negligence as Affect­ing Reliance upon General Negligence, 50 Mich.L. Rev. 1108 (1952).
Annotations: lies Ipsa Loquitur as Applicable to In­jury to passenger in collision where other vehicle was not within carrier’s control, 25 A.L.R. 600 (1923); 83 A.L.R. 1163 (1933); 161 ALIt. 1113 (1946);

“lies Ipsa Loquitur” as a Presumption or a mere Permissible “Inference”, 53 A.L.I1. 1494 (1928), 167 ALIt. 658 (1947); lies Ipsa Loqultur distinguished from characterization of a known condition as 1mg-

ceived by the plaintiff should be made to appear. “Whereby” and “by means of the premises” are frequently used to charge that injury resulted from the defendant’s act to plaintiff’s person or property, and that the negligence was the proximate cause of the injury.64
DECLARATION IN TRESPASS ON TIlE CASE—ESSENTIAL ALLEGATIONS: (5) THE DAMAGES
92. It must appear that the Wrongful Act of the defendant was the legal cause of the injury to the plaintiff’s right.
THE Declaration must state the damages resulting as the legal and natural consequenc­es of the injury done. These may be general or special, and special damages should be al­leged specifically. In many torts falling with­in the scope of the action on the case, dam­age is the gist of the action, and must be al­leged in order to show a cause of action.
Whatever damages the plaintiff has suffer­ed from the injury committed by the defend­ligence, and the establishment of negligence by cir­cumstantial evidence, 59 A.L.R. 468 (1929), 78 ALIt. 731 (1932), 141 A.L.R. 1016 (1942); lies Ipsa Loqui­tur in its relation to the burden of proof and bur­den of evidence, 59 A.L.R. 485 (1029), 92 A.LR. 653 (1934); lies Ipsa Loquitur as applicable in ease of injury by X-Ray, 152 A.L.R. 638 (1944); lies Ipsa Loquitur as applied to collision between a moving automobile and a standing automobile or other ve­hicle, 151 ALIt, 876 (1944) ; lies Ipsa Loquitur as ground for direction of verdict in favor of plaintiff, 153 ALE. 1134 (1944); Pleading particular cause of injury as waiver of right to rely on Des Jpsa Lo­quitur, 79 A.L.R. 48 (1932), 160 ALIt. 1450 (1946); Physicians and Surgeons: Presumption or Infer­ence of Negligence in Malpractice Cases, lies Jpsa Loquitur, 162 ALIt. 1265 (1946); lies Ipsa Loqul­tur Doctrine as Affected by Injured Person’s Con­trol over or Connection with Instrumentality, 169 ALIt. 953 (1047); lies Ipsa Loquitur as applied to bursting of bottled beverages, food containers, etc., 4 A.L.R.2d 466 (1949); Res Ipsa Loquitur in Avia­tion Accidents, 6 A.L.R,2d 528 (1949).
63. Ellis v. Waidron, 19 RI. 369, 33 AtI. 869 (1896) (tIes Ipsa Loquitur).
64. Strain v. Strain, 14 111. 368 (1853); MeGanahan v. East St. Louis & C. fly. Co., 72 III. 557 (1874); Hartnett v. Boston Store of Chicago, 185 Iil.App. 332 (1914).

186


Selected Topics on bor, 1954); Dewey, Loquitur, 19 U. of Des Ipsa Loquitur:

LEer. 643 (1950); Ipsa Loquitur, 35 lies Ipsa Loquitur (1951); MeLarty,

the Law of Torts, 302 (Ann Ar-A Tare in the Field of lies Ipsa CinL.Rev. 415 (1050); Seavey, Tabula in Naufragio, 63 Harv, Slife, The Iowa Doctrine of lies Iowa LIter. 393 (1950); 5affe, Vindicated, 1 Buffalo L,liev. 1 lies Ipsa Loquitur in Airline



Sec. 93

TRESPASS ON THE CASE

187


ant, which follow as the legal and natural consequences of such injury, are recoverable, nd should be laid in a sum sufficiently high t~i cover all the plaintiff expects to prove, as his recovery will be limited by the amount stated.65 As in all other actions the dam­ages may be either general or special and, if special or peculiar to the case, they must be alleged specifically.80 Recovery will be con­fined to the injuries alleged by the declara­tion to have resulted from the particular negligence charged. In Case, unlike Tres­pass, damage is usually an essential element of liability.67
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