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sold in the village of Oakdale, in West | Boylston; and he occasionally sold a hog to the local butcher. He had no regular route or customers for the sale of the hay, eggs. vegetables, milk, and cider. It does not apper, and is perhaps not material. of how many persons his family consisted, nor how much hay and other produce or how many eggs and hogs he sold. The village of Oakdale was destroyed by the construction of the reservoir, and the petitioner brings this petition to recover the damages there-mit of question.” by caused to his business.

than any other business from its operation. It is manifest, also, we think, that the petitioner was engaged in the business of farming. That was the means, and, so far as appears, the only means, whereby he procured a livelihood for himself and his family. The more difficult question is whether, as he carried it on, it was "an established business" within the meaning of the statute. That it was a business "on land in the town of West Boylston would seem to hardly adIn this connection it is to be noted that the business of farming is carried on by the petitioner included not only the raising of farm products, but the selling of a portion of the same. As a farmer he raised and sold farm products. He had owned and had thus carried on the farm for many years,-fifteen it is said in the brief,-and, so far as he was concerned, the business was an established business. It had got beyond the stage of experiment, and had become his settled and only occupation, and, for aught that appears, furnished a comfortable living for himself and his family. Any element of uncertainty or chance that there may have been about it at any time had disappered, and he could and did depend on it from year to year for a livelihood for himself and family. If the persons in Oakdale to whom he sold his surplus produce had gone to his farm, and bought there, or if he had had a shop in the village, there can be no doubt, we think, that he would have had an established business on land in West Boylston within the meaning of the act. It is said, however, that he had no regular route or customers, and that there was nothing in the nature of a good will, such as goes, for instance, with a physician's practice; that, in short, there was nothing in the nature of property in the business as carried on by the petitioner, and that it was only such cases for which the legislature intended to provide. But this case would seem to show that there may be an established business without a regular route or regular customers, or anything in the nature of a good will. If these things are present in any given case, they show beyond question that the business is an established business. But the words have no settled meaning (Ex parte Breull, L. R. 16 Ch. Div. 484), and are to be construed with reference to the circumstances of each particular case. The petitiener had been carrying on the same business, in the same locality, and on and from the same firm, for fifteen years. How can it be said that the business was not an established business? Presumably the village of Oakdale was a small place. and he may have found it more to his advantage to sell where and as he could than to adhere to a

The act under which the petition is brought is entitled "An Act to Provide for a Metropolitan Water Supply," and provides for the construction of a reservoir, the effect of which will be to submerge certain towns and villages, and to destroy a large amount of property, and to interfere very seriously with, if not destroy, in many cases, business. Ordinarily, the damage done to a person's business by the exercise of the right of eminent domain is not a matter for which he is entitled to compensation. But in the present case the legislature has shown a disposition to deal liberally with those who would or might be injured by the carrying out of the act. In addition to providing compensation for real estate taken, and for real estate not taken, but directly or indirectly decreased in value, the act provides that in certain cases individuals and firms shall be compensated for damage done to their business, whether the land on which it is established is taken or not, and whether the business is decreased in value by loss of custom or otherwise. By subsequent acts these provisions were extended to the towns of Sterling, Boylston, and the part of Clinton within the limits of the reservoir. Stat. 1897, chap. 445, p. 429: Stat. 1898, chap. 551, p. 666; Stat. 1901, chap. 505, p. 451. By another act the legislature went so far as to provide that in certain cases the employees of corporations, partner ships, and individuals in West Boylston should be entitled to compensation when thrown out of work by the taking of the property of their employers under the act. Stat. 1896, chap. 450, p. 444. The purpose of the legislature to deal liberally with those affected by the construction of the reservoir is thus shown, and the provisions now before us should be construed in accordance with the intention thus manifested. The word "business" is of large significance. and "denotes the employment or occupation in which a person is engaged to procure a living." Goddard v. Chaffee, 2 Allen, 395, 79 Am. Dec. 796. That farming is a business is plain (Snow v. Sheldon, 126 Mass. 332, 30 Am. Rep. 684), and there is nothing in the statute that excludes it any more

fixed route and regular customers; and so an established relation may have existed between him and the citizens of that vil lage as to the sale of his farm products. It is also to be noted in this connection that by the terms of the act compensation is to be given whether the damage occurs by loss of custom or otherwise. The petitioner's farm was, as said in Earle v. Com. 180 Mass. 579, 583, 57 L. R. A. 292, 91 Am. St. Rep. 326, 63 N. E. 10, of a doctor's office, "the locally established center from which he distributed what he had to sell," and his business could therefore be fairly said to have been an established business on land in West Boylston. The fact that he did not raise things in large quantities, or that the farm was a small one, has, of course, no tendency to show that the business was not an established business. The legislature did not mean that everyone in the towns of West Boylston, Boylston, Sterling, and Clinton who should be injured in his business or occupation by the construction of the reservoir should receive compensation therefor. But by the building of the reservoir certain towns and villages would


W. K. RIDEOUT et al., Admrs., etc., of Christian Sarau, Deceased, Respts.,





(123 Wis. 297.)

1. The term "negligence" by itself suggests only inadvertence or want of ordinary care, and, however great may be the

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be altogether destroyed, and the inhabitants scattered. Naturally, there would be cases in which individuals derived support for themselves and their families in whole or in part from supplying the wants of the people living in the towns and villages that would be thus broken up, and whose business would be very seriously interfered with, if not altogether destroyed. Such cases might well appeal to the consideration of the legislature, and we think that it was the object of the legislature to provide for them. By the use of the word "established" it intended to exclude cases where the business had not an element of fixity and permanence, and by the use of the words "on land in the town of West Boylston" to confine the right of recovery to cases which were local in their character. A majority of the court think that the petitioner's case comes within the scope of the statute as thus defined, and that he is entitled to recover, and that judgment should be entered in his favor for $150, the amount of the damage found by the commissioners, and interest and costs. So ordered.

degree of such want of care, so long as the element of inadvertence remains, wilfulness is excluded.

2. The term "gross negligence" signifies wilfulness. It involves intent, actual or constructive, which is a characteristic of criminal liability. If one is guilty of inadvertence causing injury to another, that one's fault is denominated want of ordinary care. If one is guilty of wilful misconduct causing actionable injury to another, the former's fault is denominated "gross negligence." 3. Since, in the first case suggested, intention to do the injury, actual or con


party in the commission of an injury to another, as to become the equivalent of wilful or intentional injury. Some of the courts have intimated in strong terms that there is a decided difference; and in one state the ult'mate court has decided that "negligence, whether slight, ordinary, or gross. is still negligence: negligence is negative in its nature, implying the omission of duty, and excludes the idea of wilfulness. When wilfulness is an element in the conduct of the party charged. the case ceases to be one of negligence." Terre Haute & I. R. Co. v. Graham, 95 Ind. 293, 48 Am. Rep. 719.

And in Parker v. Pennsylvania Co. 134 Ind. 673, 23 L. R. A. 552, 34 N. E. 504, it was said that "wilfulness does not consist in negligence; on the contrary, the two terms are incompatible. Negligence arises from inattention, thoughtlessness, or heedless"e s. while wilfulness cannot exist without purpose or design. No purpose or design can be said to

structive, must be absent, and in the second case present, a complaint using language to describe defendant's fault appropriate to both species of misconduct, as if they occurred at one and the same time, and that one inIcluded the other, is indefinite and uncertain. 4. Gross negligence does not include ordinary negligence, and proof of the former does not prove, but rather disproves. the latter.

5. Where a complaint is indefinite and uncertain because of the pleader's confusing the element of advertence with that of inadvertence, ordinary negligence with gross negligence, and the attention of the trial court is called thereto. though not in the most approved manner, it should compel the plaintiff to proceed upon one theory or the other, if both theories can

be reasonably spelled out of the pleadings. or give such permissible construction to the

pleadings as to confine plaintiff's claim to one species of wrongdoing.

The use of the expression "gross negligence," in a charge to the jury, does not of itself de fine, nor does it include only, that extreme de gree of negligence which is wanton or reckless of its injurious consequences, and to which

6. Where a complaint has a double aspect rendering it indefinite and uncertain, as above indicated, it is error to submit the cause to the jury upon both aspects, and, in case error is committed in that regard resulting in a verdict in favor of the plaintiff upon the ground of gross negligence and ordinary negligence as well, it is error to render judg ment thereon, because of inconsistency in the findings.

(December 13, 1904.)


PPEAL by defendant from a judgment of the Circuit Court for Winnebago County in favor of plaintiffs in an action brought to recover damages for the al

exist where the injurious act results from neg ligence, and negligence cannot be of such a degree as to become wilfulness."

And the same court has held that the word "wanton." in a complaint in an action against a railroad company for injuring a child. in that the defendant in a wanton and careless manner ran a locomotive, etc., does not mean wilful. Lafayette & I. R. Co. v. Huffman, 28 Ind. 287, 92 Am. Dec. 318.

And also that an allegation in a complaint in an action against a railroad company for causing an injury to the plaintiff, that the train was run "recklessly and with gross neg ligence." does not imply that the injury was inflicted either purposely or wilfully. Cincin nati & M. R. Co. v. Eaton, 53 Ind. 307.

And again, in Louisville, N. A. & C. R. Co. v. Bryan, 107 Ind. 51, 7 N. E. 807, "to say that an injury resulted from the negligence and wilful conduct of another is to affirm that the same act is the result of two exactly opposite mental conditions. It is to affirm in one breath that an act was done through inattention. thoughtlessly, heedlessly, and at the same time purposely and by design." And yet in the same case it was conceded that an act done under such circumstances as evinced a reckless disregard for the safety of others, and a willingness to infl'ct the injury complained of. constituted wilful injury, as fully as an inten tional act. This was approved in Belt R. & In RIDEOUT v. WINNEBAGO TRACTION Co. the Stock Yard Co. v. Mann, 107 Ind. 89, 7 N. E. doctrine is asserted and maintained that "gross 893, in which case it was further said that. negligence" in the commission of an act which if the injurious act or omission was commitperpetrates an injury is the same as, and ted under such circumstances as that its means and includes, a wilful injury; and, on natural and probable consequences would be to the other hand, that between what is merely produce injury to others, it would be as ef termed negligence, or ordinary negligence, and fectual to entitle one to recover for an in gross negligence there is a wide distinction.— jury to which his own negligence may have one with a difference,-and that because of it contributed as if such act or mission had no recovery can be sustained on proof of the been purposely and intentionally committed former, under a complaint alleging the latter. with a design to produce injury.

It must be admitted that there are much truth and considerable logic in these statements. But the general trend of decision would appear from the cases to be in favor of the doctrine that an act may be so grossly negligent that it may be presumed to have been wilfully or intentionally done. And the last two Indiana cases seem substantially to concede such proposition.

II. Allegation of wilful or gross negligence.

In Denver & R. G. R. Co. v. Buffehr, 30 Co'o 27, 69 Pac. 582, the court said: "In passing. we observe that an allegation that an act is wanton, reckless, and grossly negligent is not equivalent to an allegation of a wilful or an intentional act."

In Louisville & N. R. Co. v. Johnston, 79 Ala. 436. the gravamen of the action. as averred in the complaint, was, that the defendant "wilfully refused to stop" the train of cars at the station which was the point of the plaintiff's destination, and carried her several hundred yards beyond the customary stopping place, where she was compelled to alight withGut her consent and against her protest; and

the defense of contributory negligence does not obtain; and cannot be held as having been intended to submit the case to the jury for consideration as one of that character, and particularly so where other charges have recognized contributory negligence as a defense to the action. Florida Southern R. Co. v. Hirst, 30 Fla. 1, 16 L. R. A. 631, 32 Am. St. Rep. 17, 11 So. 506.

And, as "gross negligence" is not confined to that extreme degree of negligence which evinces reckless disregard of human life or f the safety of persons exposed to its dangerous effects; or a conscious indifference to consequences; or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or a reck'ess indifference to the rights of others which is equivalent to an intentional violation of them, -it is not proper to charge a jury simply that gross negligence will justify the imposition of exemplary damages. Ibid.

leged negligent killing of plaintiffs' in- Christian Sarau,-marched in parade for

testate. Reversed.

mation along the street specially mentioned, escorted by a military band of twenty-four pieces discoursing music. Some of the marchers, including Sarau, in the exercise of ordinary care, walked between the rails of defendant's track located on such street, and others walked on either side thereof. While so doing defendant's servant with one of its cars approached the procession from the rear at a dangerous rate of speed, without giving any sufficient warning to the marchers to yield the right of way before reaching them. The car, going at such dangerous rate of speed, without sufficient warning being given as aforesaid, was carelessly, negligently, recklessly, and wantonly propelled into the

Statement by Marshall, J.:

Action for damages for the alleged wrongful killing of plaintiffs' intestate. The circumstances stated as a ground for a recovery are substantially these: From June 22, 1897, up to and inclusive of the event complained of, defendant was a corporation duly organized under the laws of this state, and authorized to operate an electric street railway on various streets, including Merritt street, in the city of Oshkosh, Wisconsin. August 24, 1903, the Uniformed Rank, Knights of Pythias in such city, some being on foot and some being in carriages,-one of the former being

the court said that, under this averment of the complaint, there could be no recovery in the action, unless the evidence in the case satisfied the jury that the failure of the defendant's servant to stop the train was wilful, and, if it was merely negligent, without more, there would be a fatal variance between the allegations and the proof.

In Birmingham Mineral R. Co. v. Jacobs, 92 Ala. 187, 12 L. R. A. 830, 9 So. 320, the charge, in the first count of the complaint, that the servants and agents of the defendant company negligently, wantonly, recklessly, and wilfully caused, permitted, and suffered the collision of a train under their management and control with a dummy engine, whereby the said intestate was killed, was held not sustained, where there was no testimony tending to show that the collision was "wilfully caused by defendant's servants," but the trend of the whole testimony repelled such inference; and that the refusal of a request so to instruct the jury was error. The court said that this was the identical question which was raised and ruled on in Louisville & N. R. Co. v. Johnston, 79 Ala. 436, and that, while the point might be somewhat technical, they did not feel at liberty to depart from the ruling then made.

In Highland Ave. & Belt R. Co. v. Winn, 93 Ala. 306, 9 So. 509, where both counts of a complaint alleged that the plaintiff attempted to get off the defendant's train, after protesting against being required to do so, through fear superinduced by the threatening attitude of the conductor; and the first count further averred that the fall she received in making this coerced attempt was caused by the "wrongful and malicious act of the conductor" in requiring or forcing her to get off while the train was in motion; and in the second count the fall was ascribed to the "wilful and negligent acts of the conductor and engineer," the court, in reversing a judgment for the plaintiff, said that the doctrine of the court is that under such a complaint no recovery can be had for mere negligence; that wilfulness or its equivalent, recklessness, or wantonness must be proved; citing and approving Louisville & N. R. Co. v. Johnston, 79 Ala. 436, and stating that the principle of that case was adhered to and reannounced in Birmingham Mineral R. Co. v. Jacobs, 92 Ala. 187, 12 L. R. A. 830, 9 So. 320.

The principle laid down in the last three

cases, that a charge that the act complained of was wilful, or that it was knowingly done, cannot be supported by evidence of mere negligence, not involving wilfulness or knowledge of the danger, was affirmed, and the cases themselves were approved, in Kansas City, M. & B. R. Co. v. Crocker, 95 Ala. 412, 11 So. 262. The court in this case gave, by inference at least, an additional argument why this principle should be maintained, and stated that it had been held that a plea of contributory negligence to a complaint charging a wilful infliction of injury by the defendant is bad on demurrer; citing Alabama G. S. R. Co. v. Frazier, 93 Ala, 45, 30 Am. St. Rep. 28, 9 So. 303, the inference being that, if a plaintiff should allege in his complaint that the injury was caused by the wilfulness of the defendant, or that it was knowingly done, and the plaintiff was permitted to recover by proof of mere negligence, the defendant would be deprived of h's defense of the contributory negligence of the plaintiff, as, under the decision in the Frazier Case, a demurrer to such a defense would be good.

And this theory would seem to be confirmed in another case, which decided that, where a count in a complaint against a railroad company for injury charged in one clause that the injury was wantonly inflicted, and the other clause set out the facts constituting the alleged wanton conduct; and, from the whole construed together, as it must be, it was evident that the facts relied upon to show wantonness amounted to no more than simple negligence, a demurrer thereto should be sustained. Memphis & C. R. Co. v. Martin, 117 Ala. 367, 23 So. 231. The reason undoubtedly was that, although the defense of contributory negligence to a complaint alleging that the injury was wantonly inflicted would be demurrable, the plaintiff should not be permitted, by the use of the epithet "wantonly" in a general attempt to describe the injury,-which the facts alleged showed to be a case of ordinary negli gence, thus to deprive the defendant of his proper defense of contributory negligence.

Where a count in a complaint against a railroad company for causing injury to the plaintiff alleged that the defendant knew of plaintiff's danger, "and could. by the exercise of proper diligence, have prevented his injuries as aforesaid, which it negligently failed to do," the rgligence thus averred being the equiva

space occupied by the marchers and onto and over said Sarau, causing injuries from which he on the same day died.

Sarau suffered great mental and physical pain from the instant he was injured till death occurred, and plaintiffs as his person al representatives were put to great expense by reason of such wrongful conduct for medical and surgical care of and at tendance upon Sarau, and for nursing and hospital bills.

Several times in the complaint the conduct of the defendant's servant who controlled the car was characterized as careless, negligent, reckless, wilful, and winton, or by words of similar import. Allega tions were made appropriate to a cause of action for damages to Sarau, which sur

vived to his personal representatives, and also a cause of action for damages to his surviving relatives, the whole amount claimed being $10,000.

Defendant answered putting in issue the allegations of the complaint as to its servant having negligently operated the car on the occasion in question, and pleaded as the proximate cause of the injury and death of Sarau, want of ordinary care on his part.

In Chicago, B. & Q. R. Co. v. Dickson, 88 Ill. 431, which was an action for damages for injuring the plaintiff by a collision, the first count of the plaintiff's declaration charged as the cause of the injury that the defendant's servants caused the whistle of the engine to be sounded in a loud, shrill, unnecessary, and negligent manner, need'essly, wantonly, negligently, and maliciously, whereby, etc.; the second count charged as the cause of the injury that, as the train was approaching from the rear. the servants of defendant caused the whistle to be sounded in sharp, shrill, loud sounds, and in quick and rapid succession, needlessly, reckand lessly, wilfully, wantonly, maliciously, whereby, etc. The court held that, under the first count, it was competent for the plaintiff. under appropriate proof, to have made out a case of negligence on the part of the defend ant, and that in answer to such a case, s) made, it would have been competent for the

It fairly appears from the record, in harmony with the claim of respondents' attorneys upon the argument of the case in this court, that respondents' right to recover was intended to be grounded on gross negligence. The court, nevertheless, refused to construe the complaint in harmony

lent of wantonness or wilful misconduct, to authorize a recovery it was necessary to prove the negligence averred; and proof of simple negligence, that is the failure to exercise or dinary care.-would not sestain such an alle a tion. Louisville & N. R. Co. v. Hurt, 101 Ala. 34, 13 So. 130.

defendant to show contributory negligence on the part of the plaintiff, and, unless the negligence of the defendant was gross, and that of the plaintiff slight in comparison to that of the defendant, no recovery could have been had but that, under the second count, the plaintiff could not recover upon proof of In Lev'n v. Memphis & C. R. Co. 109 Ala. mere negligence on the part of the defendant; 332, 19 So. 395, the counts upon which the that no recovery could be had under that count, trial was had claimed damages resulting from without proof that the sounding of the whisthe defendant's wantonness or wilfulness. and tle in the manner charged was done needlessthere was no evidence of wantonness or wilfully, and either wantonly, recklessly, wilfully, or maliciously. Approved and followed in Wabash R. Co. v. Speer, 156 Ill. 244, 40 N. E. 835.

ness. This being so. the court said that, conceding for the argument that the evidence tend ed to show negligence on the part of the de fendant, this did not authorize a recovery on the case made by the complaint: and an af firmative charge for the defendant was sus tained.

In view of the position taken by the court In these cases, it should be stated that the doctrine of comparative negligence prevails in Illinois.

Where a complaint against a railroad company for injury sustained by the plaintiff alleged that the injury was occasioned by an intentional. wilful, and deliberate act or omis sion of duty of defendant's servants, the plaintiff must be held to proof of such act or omis s'on, as such a complaint states a cause of ac tion based not upon mere negligence, but upon an intentional, wilful act or dereliction of duty on the part of defendant's servant, characterized by recklessness or heedlessness as to the consequences of his act, or failure to act. Denver & R. G. R. Co. v. Buffehr, 30 Colo. 27, 69 566. Pac. 582.

Under a complaint charging wilfulness and gross negligence, and claiming that the injury complained of occurred by reason of the wilfulness and gross negligence of the defendant's servants, it was held that the plaintiff could recover only by proving that the deceased was wilfully killed by the railroad company, and that the simple fact that the deceased was struck and killed by the train under circumstances which did not tend to prove a wilful killing would not sustain such a complaint. Indianapolis & V. R. Co. v. McClaren, 62 Ind.

"Gross or reckless negligence" is not wilful negligence; and it would be error to instruct a jury that, under a pleading charging a wil ful injury. they might find for the plaintiff by simply finding that the defendant was guilty of "gross or reckless negligence," for it would be necessary to find wilfulness. Chicago & E. I. R. Co. v. Hedges, 105 Ind. 398, 7 N. E. 801.

In an action against a railroad company for killing the plaintiff's cow, the court said that a case like this must proceed upon one theory or the other; that a single paragraph of a complaint cannot be framed in such a manner as to entitle the party to recover either for an the intentional or negligent injury as facts may appear: and that in this case, the plaintiff having elected to sue for an injury intentionally and wilfully committed, he must stand by that theory, and cannot. without other pleadings. shift his ground and recover upon the theory that the defendant was negligent.

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