ing that the plaintiff and her children were alone in her husband's house, unlawfully, wantonly, and maliciously shot at and wounded her husband's dog, lying peaceably in close proximity to the house, on the land of a third person, whereupon the dog sprang up, rushed wildly and rapidly towards the house, entered it through an open door into the room where the plaintiff was, ran violently and forcibly against her, knocking her down and injuring her; and the question is whether the estate is liable for it. The defendant says that, in order to recover, the plaintiff must establish two things, namely,

have been extinguished in a short time had it not been for such severing of the hose, and the persons in charge of the train had no occasion for haste, and had sufficient notice and warning and might have stopped, but refused to delay and give time for uncoupling the hose. Metallic Compression Casting Co. v. Fitchburg R. Co. 109 Mass. 277, 12 Am. Rep. 689.

And a complaint in an action against a railroad company for a personal injury, alleging that the servants and agents of the company operated a locomotive of the company in such a careless and culpably negligent manner as to wilfully and wrongfully cause a team of horses of a third person to take fright and run away, and that because of such fright and while unmanageable and running away they ran against a horse of the plaintiff and caused its death, does not show merely passive negligence, but wanton and wilful wrong, and will not be deemed to state an injury too remote to warrant a recovery, where it appears that the whistle was sounded at an improper place in a wilfully and dangerously negligent manner, without excuse or justification. Billman v. Indianapolis, C. & L. R. Co. 76 Ind. 166, 40 Am. Rep. 230.

a

And where valuable property which was heavily mortgaged had depreciated in value in consequence of the removal by a railroad company of its depot, and an agreement was entered into between the railroad company and the property owner to secure the prompt return of the depot to its former site and save the sacrifice of a foreclosure in a time of depreciation, whereby he surrendered valuable riparian rights to the railroad company, and the latter, fully understanding the situation, maliciously and wilfully, because of the refusal of the owner to consent to the closing up of a street upon which his property abutted, broke its agreement and delayed the restoration of the depot for the express purpose of preventing the owner from warding off the foreclosure, and itself instigated such foreclosure; and the property was sold at a sacrifice, and damages were released and the street closed, there is something more than a mere breach of contract, the acts of the company amounting to a tort for which it is liable, and the breach of the contract being one of the elements constituting it; and proof of the contract and its breach, and of delay in restoring the depot, and the reasons therefor, and the situation of the parties with respect to their several properties, and the existence of the mortgage and the agreement to postpone the sale, are elements of the transaction proper to be shown in an action for damages. Rich v. New York C. & H. R. R. Co. 87 N. Y. 382.

So, a person throwing a squib which struck near one person, who, to prevent injury to himself, threw it across a market house where it fell near another person, who, to save himself, again threw it from him, where it struck a third person in the eye, seriously injuring him, was

negligence on the part of Dow, and that her injury resulted proximately therefrom, and that the case shows neither, as it does not show that Dow owed her any legal duty, nor that his act was the proximate cause of the injury. But we cannot adopt this view. The intestate unlawfully, wantonly, and maliciously shot at the dog, intending, we will assume, to kill it, but not knowing whether he would or not, and not knowing what would happen if he did not; and by his wanton act the dog was set wildly in motion, and that motion, thus caused, continued, without the intervention of any other agency, and held liable to the person so injured. Scott v. Shepherd, 2 W. Bl. 892, 3 Wils. 403.

And in Conklin v. Thompson, 29 Barb. 221. a recovery was allowed in an action for the value of a horse which died of sudden fright caused by the sudden explosion of firecrackers thrown under him by the defendant, under an allegation that he designedly and intentionally and wilfully did the act; but it does not appear whether the result was affected by the allegation of wilfulness.

And in Kicker v. Freeman, 50 N. H. 420. 9 Am. Rep. 267, it was held that an injury received by a person who was caught by another by the arm and swung around violently and then let go and thrown by the impetus against another standing near, who immediately pushed him off, whereby he was thrown against a hook and severely injured, though not to be regarded as the inevitable result of the original unlawful act, would entitle the person injured to maintain trespass against the person swinging him, if the result was a consequence of the act. But in this case it was said that no malice was attributed to the defendant.

So, one on whom a wilful injury is inflicted is not precluded by his mere failure to exercise reasonable care to avoid the consequences of the injury from recovering for so much of the damage as resulted from that failure. Galveston, H. & S. A. R. Co. v. Zantzinger (Tex.) 44 L. R. A. 553.

And the act of a locomotive engineer in throwing steam and water upon a trespasser standing upon a foot board between the engine and a flat car, in order to make him get off, must be deemed to be wilful so that the negligence of the trespasser in placing himself there cannot deprive him of the right to recover for an injury received in attempting to get off. Ibid.

IV. Wilful misrepresentations and false war

ranties.

The subject of misrepresentations and false warranties is here intended to be dealt with only so far as their wilfulness affects the question of

liability for consequences not proximate or immediate, as such misrepresentations, and such only, fall within the rule applicable to wilful

and malicious torts.

Thus, the plaintiff in an action for fraudu lent misrepresentations may recover for any injury which is the direct and natural consequence of his having acted on the faith of such misrepresentations. Mullett v. Mason, L. R. 1 C. P. 559, 1 Harr. & R. 779, 35 L. J. C. P. N. S. 299.

And the owner of cows to whom a cattle dealer sells a cow upon the wilful fraudulent misrepresentation that it is free from infectious disease when in fact it is not, who places such cow with his own causing them to catch the disease and die, is entitled to recover the value of all the cows from the cattle dealer. Ibid.

without power on his part to control it, until the plaintiff's injury resulted therefrom. In these circumstances the law treats the act of the intestate as the proximate cause of the injury, whether the injury was, or could have been, foreseen or not, or was or not the probable consequence of the act; for the necessary relation of cause and effect between the act and the injury is established by the ontinuous and connected succession of the intervening events. This is the universal rule when the injurious act is wanton. In 16 Am. & Eng. Enc. Law, 434, the true principle is said to be that he who does such an act is liable for all the consequences, how ever remote, because the act is quasi criminal in its character, and the law conclusively

And one who caused a horse afflicted with a Contagious disease to be put up at auction nowing it to be so afflicted is liable to the purhaser, where the horse was worthless to him and he paid money to a veterinary surgeon for examining it and placed it in a stable with another horse, which also became infected and died, for the amount paid for the horse, to the veterinary surgeon, and for the value of the borse thus lost. Hill v. Balls, 2 Hurlst. & N. 299, 27 L. J. Exch. N. S. 45, 3 Jur. N. S. 592.

So, one who is injured by the explosion of a badly-manufactured and unsafe gun made of unsound and inferior materials can recover for such injury from a person who sold the gun to his father, knowingly, falsely, and fraudulently warranting it to have been made by a certain well-known gun maker, and to be a good, safe, and secure gun, the purchase having been made by the father for the use of himself and sons. Langridge v. Levy, 2 Mees. & W. 519.

V. Limit to the rule.

Even in case of wilful and malicious torts, however, the rule of liability is limited to probable consequences or consequences which might have been foreseen.

Thus, the act of the owner of a house in permitting a large party of negroes to meet at it to dance and frolic, though unlawful and exposing him to a penalty of $2 for each person, does not render him liable for the death of one of the slaves killed by an officer of a patrol who came to the house to arrest the negroes and, while they were attempting to escape, fired a pistol into a dark room where many of them remained, the damage being the direct and im. mediate consequence of the shooting, and not the probable or natural consequence of the unJawful act of the owner of the house. Bosworth v. Brand, 1 Dana, 377.

presumes that all the consequences were foreseen and intended. But it is not necessary, in this state, certainly, that the act should be wanton, in order to impose liability for all the injurious consequences. If it is voluntary, and not obligatory, it is enough. In Vincent v. Stinehour, 7 Vt. 66, 29 Am. Dec. 145, it is said that for such an act the doer is answerable for any injury that may happen by reason thereof, whether by accident or carelessness. In Wright v. Clark, 50 Vt. 130, 28 Am. Rep. 496, the defendant shot at a fox that the plaintiff's dog had driven to cover, and accidentally hit the dog; and he was held liable, because the shooting at the fox was voluntary, and furnished no excuse for hitting the dog, though he did not circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act.

And in Renner v. Canfield, 36 Minn. 90, it was held that if the act of a person in shooting another's dog in the highway about 175 feet from the owner's residence while the owner's wife was standing outside, but not seen by him or known to be there, whereby she was So startled and frightened as to seriously affect her health, amounts to a tort which in any possible view of the case could be held to be the proximate cause of the injuries complained of, the gist of it must be negligence in shooting in such proximity to a human residence as might naturally and reasonably be anticipated to be liable to injure the inmates by fright or otherwise. And in such case a verdict for the plaintiff cannot be sustained on the theory that the defendant might be liable from the mere fact that the killing of the dog was unlawful, as it is elementary that a man is liable only for the proximate or immediate and direct results of his acts. But see ISHAM V. Dow.

So, though whenever an injury results to a party from an unlawful act or omission of another the injured party is in general entitled to reparation and may maintain an action against the wrongdoer, the injury must be the direct and immediate, or at least the proximate and natural, consequence of the act or omission complained of, and though it may be traced to the unlawful act of one person, if it would not have happened but for the subsequent unlawful act of another person, the latter, and not the former, is liable therefor. Bosworth v. Brand, 1 Dana, 377.

And the explosion, and not the act of one person in drawing another in front of him to act as a shield when an explosion of dynamite caused by a third person is about to take place in their presence, is the proximate cause of injuries received by the person thus drawn, where they are not shown to have been increased by such act. And the person thus drawing the other before him cannot be held liable for in

when it is not shown the injuries were thereby increased. Laidlaw v. Sage, 158 N. Y. 73, 44 L. R. A. 216.

And an action for such injuries should not be submitted to the jury in the absence of any evidence beyond mere conjecture tending to show that the injuries received were thereby increased. Laidlaw v. Sage, 158 N. Y. 73, 44 L. R. A. 216.

The question whether or not a wilful trespass is the proximate cause of injury received, is one for the jury, where all the material facts in the case are in dispute. Drake v. Kiely, 93 F. H. B.

intend to hit him. The same rule was applied at nisi prius, without exception, in Taylor v. Hayes, 63 Vt. 475, where the defendant shot at a partridge, and accidentally hit a cow. So, in Bradley v. Andrews, 51 Vt. 530, the defendant voluntarily discharged an explosive missile into a crowd, and hurt the plaintiff; and it was held that, as the act was voluntary and wrongful, the defendant was liable, and that his youth and inexperience did not excuse him. The rule is the same here in negligence cases, and may be formulated thus: When negligence is established, it imposes liability for all the injurious consequences that flow therefrom, whatever they are, until the intervention of some diverting force that makes the injury its own, or until the force set in motion by the negligent act has so far spent itself as to be too small for the law's notice. But, in administering this rule, care must be taken to distinguish between what is negligence, and what the liability for its injurious consequences. On the question of what is neg. ligence, it is material to consider what a prudent man might reasonably have anticipated; but, when negligence is once established, that consideration is entirely immaterial on the question of how far that negligence imposes liability. This is all well shown by Stevens v. Dudley, 56 Vt. 158, and Gilson v. Delaware & H. Canal Co. 65 Vt. 213. The rule is the same in England, as will be seen by referring to the leading case of Smith v. London & Š. W. R. Co. L. R. 6 C. P. 14, in the exchequer chamber. In Sneesby v. Lancashire & Y. R. Co. L. R. 1 Q. B. Div. 42, a herd of plaintiff's cattle were being driven along an occupation road to some fields. The road crossed a siding of the defendant's railway on a level, and when the cattle were crossing the siding the defendant's servants negligently sent some trucks down the siding among them, which separated them from the drovers, and so frightened them that a few rushed away from the control of the drovers, fled along the occupation road to a garden some distance off, got into the garden through a defective ferce, and thence onto another track of the defendant's railway, and were killed; and the question was whether their death was not too remote from the negligence to impose liability. The court said that the result of the negligence was twofold: First, that the trucks separated the cattle; and, second, that the cattle were frightened, and became infuriated, and were driven to act as they would not have done in their natural state. That 45 T. R. A.

everything that occurred or was done after that must be taken to have occurred or been done continuously. And that it was no answer to say that the fence was imperfect, for the question would have been the same, had there been no fence there. Then liability was made to depcnd, not on the nearness of the wrongful act, but on the want of power to divert or avert its consequences, and it continued until the first impulse spent itself in the death of the cattle. See Ricker v. Freeman, 50 N. H. 420, 9 Am. Rep. 267; Alabama & G. S. R. Co. v. Chapman, 80 Ala. 615. Ellis v. Cleveland, 55 Vt. 358, is not in conflict with the Vermont cases above cited, as is supposed; for there there was no causal connection between the wrongful act and the injury complained of, and so there could be no recovery. As illustrative of nonliability for damage flowing from an intermediate and independent cause operating between the wrongful act and the injury, see Holmes v. Fuller, 68 Vt. 207. Ryan v. New York C. R. Co. 35 N. Y. 210, 91 Am. Dec. 49, is relied on by the defendant. Pennsylvania R. Co. v. Kerr, 62 Pa. 353, 1 Am. Rep. 431, is a similar case. It is said in Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 474, 24 L. ed. 258, that these cases have been much criticised; that if they were intended to hold that when a building has been negligently set on fire, and a second building is fired from the first, it is a conclusion of law that the owner of the second has no remedy against the negligent wrongdoer, they have not been accepted as authority for such a doctrine even in the states where they were made, and are in conflict with numerous cases in other jurisdictions. Judge Redfield says in 13 Am. L. Reg. N. S. 16, that these cases have not been countenanced by the decisions in other states. And Judge Cooley says that a different view prevails in England and most of the American states; that the negligent fire is regarded as a unity; that it reaches the last building, as a direct and proximate result of the original negligence, just as a rolling stone put in motion down a hill, injuring several persons in succession, inflicts the last injury as a proximate result of the original force as directly as it does the first, though, if it had been stopped on the way, and started again by another person, a new cause would thus have intervened, back of which any subsequent injury could not be traced; that proximity of cause has no necessary connection with contiguity of space or nearness of time. Cooley, Torts, 1st ed. 76. Judgment reversed, and cause remanded.

Peter R. L. VAN HORN

υ.

William VAN HORN et al., Appts.

(107 Iowa, 247.)

1. The general and notorious recognition of an illegitimate son by his father, which will entitle him to inherit real and personal property of his father in Iowa, under Iowa Code 1873, § 2466, may be sufficient, although it took place in another state, where the parties resided at the time, and in which the son might have no such right to inherit. 2. The recognition of an illegitimate son is general and notorious, within the meaning of Code 1873, § 2466, when it is open and extensive, though not universal.

(January 21, 1899.)

APPEAL by defendants from a decree of

the District Court for Howard County in favor of plaintiff in a proceeding to establish plaintiff's right to inherit property of Peter Van Horn, deceased. Affirmed.

Statement by Deemer, J.:

This is a proceeding to establish plaintiff's right as an illegitimate son to inherit the property, real and personal, of one Peter Van Horn, who died intestate in Howard county, Iowa, in August of the year 1895. The deceased was never married, and the defendants are his brothers and sisters. In answer to plaintiff's claim defendants made a general denial, and further pleaded that at the time of plaintiff's birth, and for many years thereafter, both he and his putative father were residents of the state of New Jersey, and that by the laws of that state in force prior to and since 1854 there was no provision whereby an illegitimate child may inherit from his father. Plaintiff's demurrer to this affirmative plea was sustained, and the cause was tried on the issue tendered by the general denial, resulting in a decree for plaintiff, and defendants appeal.

Messrs. H. L. Spaulding and John McCook, for appellants:

Had the parties remained in New Jersey, and had property been there acquired, then certainly after the death no inheritable right could be claimed by reason of any of the acts of recognition which it is claimed occurred there, and deceased would assume no responsibility by making the fullest recognition while there; and had it occurred, the deceased had the right to rely upon its legal significance there, and it could not follow him to a state having a different statutory provision and there defeat the legal heirs from inheriting an estate of which he might die possessed.

Crane v. Crane, 31 Iowa, 296; Hartinger v. Ferring, 24 Fed. Rep. 15; Smith v. Derr, 34 Pa. 126, 75 Am. Dec. 641; Smith v. Kelly, 23 Miss. 167, 55 Am. Dec. 87; Miller v.

NOTE. AS to Inheritance by, through, or from illegitimate persons, see note to Croan v. Phelps (Ky.) 23 L. R. A. 753.

Miller, 91 N. Y. 315, 43 Am. Rep. 669; Wheaton, Private Int. Law, ed. 1863, 172; Wharton, Private Int. Law, § 247; Story, Confi. Law, 938; Sunderland's Estate, 60 Iowa, 732; Blythe v. Ayres, 96 Cal. 532, 19 L. R. A. 40.

At the commencement of this action the legal title to the lands of deceased was concededly in the defendants. To devest it the proof should be clear, strong, unmistakable, unequivocal, and should establish one or more of the grounds for relief beyond a doubt,

Williamson v. Williamson, 4 Iowa, 279; Nelson v. Worrall, 20 Iowa, 469; Noel v. Noel, 1 Iowa, 423; Stem v. Nysonger, 69 Iowa, 512; Lich v. Lich, 81 Iowa, 84; Story, Equity, § 769; Pomeroy, Eq. 2d ed. § 1040.

The father was required to do affirmative acts after the birth to confer inheritable

rights upon an offspring so begotten.

Deceased did not intend that plaintiff should inherit any of his property, and he did none of the acts which would have the legal effect to entitle appellee to inherit.

The New Jersey statute is and was dissimilar to our own in that the acts which in Iowa would give to a child inheritable rights would not so do in the state of New Jersey. Such child not having in that state the benefit of a statute giving it the right to inherit from its putative father, even though he should recognize it as his child orally or in writing, therefore the father could there do these things and they would have no legal significance.

Hartinger v. Ferring, 24 Fed. Rep. 15. Messrs. H. T. Reed and C. W. Reed, for appellee:

The succession of personal property is regulated and exclusively governed by the law of the owner's domicil, while that of real property is so governed by the law of the place where it is situated.

Story, Conil. Law, 7th ed. §§ 365, 481, 484; Tiedeman, Real Prop. § 664; 3 Washburn, Real Prop. § 32; United States v. Fox, 94 U. S. 320, 24 L. ed. 92; Hutchinson Invest. Co. v. Caldwell, 152 U. S. 65, 38 L. ed. 356; Harvey v. Ball, 32 Ind. 98.

And the law in force at the death of the owner controls.

3 Washburn, Real Prop. § 32; Tiedeman, Real Prop. § 664: United States v. Fox, 94 U. S. 320, 24 L. ed. 192.

A state may provide that property situated therein may descend to others than legitimate children, and such would be legal heirs.

Recognition in New Jersey will be given effect in Iowa.

Harvey v. Ball, 32 Ind. 98; Hutchinson Invest. Co. v. Caldwell, 152 U. S. 65, 38 L. ed. 356; Caldwell v. Miller, 44 Kan. 12.

If the recognition of the plaintiff by deceased during infancy was of that character which satisfies the requirements of the statute, then this fixes the right of plaintiff to inherit from his father from that time.

Milburn v. Milburn, 60 Iowa, 411; State v. Hastings, 74 Iowa, 574.