Chapter XII: Section V: The Duty of Care—misfeasance and Nonfeasance (2)

BROWN, J. The facts in this somewhat unusual case are as follows: Plaintiff was a cattle buyer, and accustomed to drive through the country in the pursuit of his business, buying cattle, hides, and furs from the farmers. On the evening of January 23, 1905, about five or 5.30 o’clock, after having been out a day or two in the country, he called at the house of defendants, about seven miles from Madelia, where he resided. His object was to inspect some cattle which Flatau, Sr., had for sale, and if arrangements could be made to purchase the same. It was dark at the time of his arrival, but he inspected the cattle in the barn, and suggested to defendant that, being unable to determine their value by reason of the darkness, he was not prepared to make an offer for the cattle, and requested the privilege of remaining over night, to the end that a bargain might be made understandingly in the morning. His request was not granted. Plaintiff then bought some furs from other members of defendants’ family, and Flatau, Sr., invited him to remain for supper. Under this invitation plaintiff entered the house, paid for the furs, and was given supper with the family. After the evening meal, plaintiff and both defendants repaired to the sitting-room of the house, and plaintiff made preparation to depart for his home. His team had not been unhitched from the cutter, but was tied to a hitching post near the house. The testimony from this point leaves the facts in some doubt. Plaintiff testified that soon after reaching the sitting-room he was taken with a fainting spell and fell to the floor. He remembers very little of what occurred after that, though he does recall that, after fainting, he again requested permission to remain at defendants’ over night, and that his request was refused. Defendants both deny that this request was made, and testified, when called for cross-examination on the trial, that plaintiff put on his overshoes and buffalo coat unaided, and that, while adjusting a shawl about his neck, he stumbled against a partition between the dining-room and the sitting-room, but that he did not fall to the floor. Defendant Flatau, Jr., assisted him in arranging his shawl, and the evidence tends to show that he conducted him from the house out of doors and assisted him into his cutter, adjusting the robes about him and attending to other details preparatory to starting the team on its journey. Though the evidence is somewhat in doubt as to the cause of plaintiff’s condition while in defendants’ home, it is clear that he was seriously ill and too weak to take care of himself. He was in this condition when Flatau, Jr., assisted him into the cutter. He was unable to hold the reins to guide his team, and young Flatau threw them over his shoulders and started the team towards home, going a short distance, as he testified, for the purpose of seeing that the horses took the right road to Madelia. Plaintiff was found early next morning by the roadside, about three quarters of a mile from defendants’ home, nearly frozen to death. He had been taken with another fainting spell soon after leaving defendants’ premises, and had fallen from his cutter, where he remained the entire night. He was discovered by a passing farmer, taken to his home, and revived. The result of his experience necessitated the amputation of several of his fingers, and he was otherwise physically injured and his health impaired. Plaintiff thereafter brought this action against defendants, father and son, on the theory that his injuries were occasioned solely by their negligent and wrongful conduct in refusing him accommodations for the night, and, knowing his weak physical condition, or at least having reasonable grounds for knowing it, by reason of which he was unable to care for himself, in sending him out unattended to make his way to Madelia the best he could. At the conclusion of plaintiff’s case, the trial court dismissed the action, on the ground that the evidence was insufficient to justify a recovery. Plaintiff appealed from an order denying a new trial.

Two questions are presented for consideration: (1) Whether, under the facts stated, defendants owed any duty to plaintiff which they negligently violated; and (2) whether the evidence is sufficient to take the case to the jury upon the question whether defendants knew, or under the circumstances disclosed ought to have known, of his weak physical condition, and that it would endanger his life to send him home unattended.

The case is an unusual one on its facts, and “all-four” precedents are difficult to find in the books. In fact, after considerable research, we have found no case whose facts are identical with those at bar. It is insisted by defendants that they owed plaintiff no duty to entertain him during the night in question, and were not guilty of any negligent misconduct in refusing him accommodations, or in sending him home under the circumstances disclosed. Reliance is had for support of this contention upon the general rule as stated in note to Union Pacific _v._ Cappier, [66 Kan. 649, 72 Pac. 281] 69 L. R. A. 513, where it is said: “Those duties which are dictated merely by good morals or by humane considerations are not within the domain of the law. Feelings of kindliness and sympathy may move the Good Samaritan to minister to the needs of the sick and wounded at the roadside, but the law imposes no such obligation; and suffering humanity has no legal complaint against those who pass by on the other side.... Unless, therefore, the relation existing between the sick, helpless, or injured and those who witness their distress is such that the law imposes the duty of providing the necessary relief, there is neither obligation to minister on the one hand, nor cause for legal complaint on the other.” This is no doubt a correct statement of the general rule applicable to the Good Samaritan, but it by no means controls a case like that at bar.

The facts of this case bring it within the more comprehensive principle that whenever a person is placed in such a position with regard to another that it is obvious that, if he does not use due care in his own conduct, he will cause injury to that person, the duty at once arises to exercise care commensurate with the situation in which he thus finds himself, and with which he is confronted, to avoid such danger; and a negligent failure to perform the duty renders him liable for the consequences of his neglect.

This principle applies to varied situations arising from non-contract relations. It protects the trespasser from wanton or wilful injury. Its extends to the licensee, and requires the exercise of reasonable care to avoid an unnecessary injury to him. It imposes upon the owner of premises, which he expressly or impliedly invites persons to visit, whether for the transaction of business or otherwise, the obligation to keep the same in reasonably safe condition for use, though it does not embrace those sentimental or social duties often prompting human action. 21 Am. & Eng. Enc. (2d ed.) 471; Barrows, Neg. 3. Those entering the premises of another by invitation are entitled to a higher degree of care than those who are present by mere sufferance. Barrows, Neg. 304. The rule stated is supported by a long list of authorities both in England and this country, and is expressed in the familiar maxim, “_Sic utere tuo_,” etc. They will be found collected in the works above cited, and also in 1 Thompson, Neg. (2d ed.), § 694. It is thus stated in Heaven _v._ Pender, L. R. 11 Q. B. Div. 503: “The proposition which these recognized cases suggest, and which is, therefore, to be deduced from them, is that, whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.” It applies with greater strictness to conduct towards persons under disability, and imposes the obligation as a matter of law, not mere sentiment, at least to refrain from any affirmative action that might result in injury to them. A valuable note to Union Pacific _v._ Cappier, 69 L. R. A. 513, discusses at length the character of the duty and obligation of those coming into relation with sick and disabled persons, and numerous analogous cases are collected and analyzed.

In the case at bar defendants were under no contract obligation to minister to plaintiff in his distress; but humanity demanded that they do so, if they understood and appreciated his condition. And, though those acts which humanity demands are not always legal obligations, the rule to which we have adverted applied to the relation existing between these parties on this occasion and protected plaintiff from acts at their hands that would expose him to personal harm. He was not a trespasser upon their premises, but, on the contrary, was there by the express invitation of Flatau, Sr. He was taken suddenly ill while their guest, and the law, as well as humanity, required that he be not exposed in his helpless condition to the merciless elements.

The case, in its substantial facts, is not unlike that of Cincinnati _v._ Marrs’ Adm’x, 27 Ky. Law, 388, 85 S. W. 188, 70 L. R. A. 291. In that case it appears that one Marrs was found asleep in the yards of the railway company in an intoxicated condition. The yard employees discovered him, aroused him from his stupor, and ordered him off the tracks. They knew that he was intoxicated, and that he had left a train recently arrived at the station, and he appeared to them dazed and lost. About forty minutes later, while the yard employees were engaged in switching, they ran over him and killed him. He had again fallen asleep on one of the tracks. The court held the railway company liable; that, under the circumstances disclosed, it was the duty of the yard employees to see that Marrs was safely out of the yards, or, in default of that, to exercise ordinary care to avoid injuring him; and that it was reasonable to require them to anticipate his probable continued presence in the yards. The case at bar is much stronger, for here plaintiff was not intoxicated, nor a trespasser, but, on the contrary, was in defendants’ house as their guest, and was there taken suddenly ill in their presence, and, if his physical condition was known and appreciated, they must have known that to compel him to leave their home unattended would expose him to serious danger.

We understand from the record that the learned trial court held in harmony with the view of the law here expressed, but dismissed the action for the reason, as stated in the memorandum denying a new trial, that there was no evidence that either of the defendants knew, or in the exercise of ordinary care should have known, plaintiff’s physical condition, or that allowing him to proceed on his journey would expose him to danger. Of course, to make the act of defendants a violation of their duty in the premises, it should appear that they knew and appreciated his serious condition. The evidence on this feature of the case is not so clear as might be desired, but a majority of the court are of opinion that it is sufficient to charge both defendants with knowledge of plaintiff’s condition—at least, that the question should have been submitted to the jury.

Defendant Flatau, Sr., testified that he was in the room at all times while plaintiff was in the house and observed his demeanor, and, though he denied that plaintiff fell to the floor in a faint or otherwise, yet the fact that plaintiff was seriously ill cannot be questioned. Flatau, Jr., conducted him to his cutter, assisted him in, observed that he was incapable of holding the reins to guide his team, and for that reason threw them over his shoulders. If defendants knew and appreciated his condition, their act in sending him out to make his way to Madelia the best he could was wrongful and rendered them liable in damages. We do not wish to be understood as holding that defendants were under absolute duty to entertain plaintiff during the night. Whether they could conveniently do so does not appear. What they should or could have done in the premises can only be determined from a full view of the evidence disclosing their situation, and their facilities for communicating his condition to his friends, or near neighbors, if any there were. All these facts will enable the jury to determine whether, within the rules of negligence applicable to the case, defendants neglected any duty they owed plaintiff.

_Order reversed._[118]

DUTCH PENAL CODE, ART. 450. One who, witnessing the danger of death
with which another is suddenly threatened, neglects to give or furnish
him such assistance as he can give or procure without reasonable fear
of danger to himself or to others, is to be punished, if the death of
the person in distress follows, by a detention of three months at most
and an amende of three hundred florins at most.

GERMAN CIVIL CODE, SECTION 826. One who wilfully brings about damage
to another in a manner running counter to good morals is bound to make
reparation to the other for the damage.

STAMMLER, LEHRE VON DEM RICHTIGEN RECHTE, 489–490. “I am walking along
the bank of a river,” says Liszt in his stimulating discussion of this
subject, “and I see a man fall in the water and struggle with the
waves. I am able to rescue him without any peril to myself; I neglect
to do so although other help is not at hand and I foresee that he must
drown. In my opinion, liability under section 826 cannot be denied.”
[Liszt, Die Deliktsobligationen des B. G. B., 72.] Surely not.

PLANCK, BÜRGERLICHES GESETZBUCH (3d ed.), II, 995 (§ 826, note _e_).
The duty to make reparation for damage under section 826 may also be
grounded upon an omission. But it is presupposed that the act which
was omitted must be regarded, under the circumstances of the case, as
commanded by good morals and that the omission took place with the
purpose of bringing about injury to the other. If one holds fast to
this, the consequences which result from the foregoing principle are
not as doubtful as Liszt (p. 72) seems to assume.

BENTHAM, COMPLETE WORKS (Bowring’s ed.) I, 164.

There is simple corporal injury, when, without lawful cause, an
individual, seeing another in danger, abstains from helping him, and
the evil happens in consequence.

Explanations:—_Abstains from helping him_.

Every man is bound to assist those who have need of assistance, if he
can do it without exposing himself to sensible inconvenience. This
obligation is stronger in proportion as the danger is the greater for
the one, and the trouble of preserving him the less for the other.
Such would be the case of a man sleeping near the fire, and an
individual seeing the clothes of the first catch fire, and doing
nothing towards extinguishing them: the crime would be greater if he
refrained from acting not simply from idleness, but from malice or
some pecuniary interest.

BENTHAM, PRINCIPLES OF MORALS AND LEGISLATION, chap. xix, sec. 1, Par.
xix (Clarendon Press reprint, pp. 322–323).

As to the rules of beneficence, these, as far as concerns matters of
detail, must necessarily be abandoned in great measure to the
jurisdiction of private ethics....

The limits of the law on this head seem, however, to be capable of
being extended a good deal farther than they seem ever to have been
extended hitherto. In particular, in cases where the person is in
danger, why should it not be made the duty of every man to save
another from mischief, when it can be done without prejudicing
himself, as well as to abstain from bringing it on him. This
accordingly is the idea pursued in the body of the work.[119]

BENTHAM, THEORY OF LEGISLATION, transl. by Hildreth (5th ed.), pp.
65–66.

As to beneficence, some distinctions are necessary. The law may be
extended to general objects, such as the care of the poor; but, for
details, it is necessary to depend upon private morality....

However, instead of having done too much in this respect, legislators
have not done enough. They ought to erect into an offence the refusal
or the omission of a service of humanity when it would be easy to
render it, and when some distinct ill clearly results from the
refusal; such, for example, as abandoning a wounded man in a solitary
road without seeking any assistance for him; not giving information to
a man who is negligently meddling with poisons; not reaching out the
hand to one who has fallen into a ditch from which he cannot extricate
himself; in these, and other similar cases, could any fault be found
with a punishment, exposing the delinquent to a certain degree of
shame, or subjecting him to a pecuniary responsibility for the evil
which he might have prevented?

LIVINGSTON, DRAFT CODE OF CRIMES AND PUNISHMENTS FOR THE STATE OF
LOUISIANA. Livingston, Complete Works on Criminal Jurisprudence, II,
126–127.

Article 484. Homicide by omission only, is committed by voluntarily
permitting another to do an act that must, in the natural course of
things, cause his death, without apprising him of his danger, if the
act be involuntary, or endeavoring to prevent it if it be voluntary.
He shall be presumed to have permitted it voluntarily who omits the
necessary means of preventing the death, when he knows the danger, and
can cause it to be avoided, without danger of personal injury or
pecuniary loss. This rule may be illustrated by the examples put in
the last preceding article: if the blind man is seen walking to the
precipice by one who knows the danger, can easily apprise him of it,
but does not; or if one who knows that a glass contains poison, sees
him about to drink it, either by mistake or with intent to destroy
himself, and makes no attempt to prevent him: in these cases the
omission amounts to homicide.[120]

MACAULAY, NOTES TO DRAFT OF INDIAN PENAL CODE. Penal Code Prepared by
the Indian Law Commissioners.[121] Chapter xviii [page 76]. Of
Offences Affecting the Human Body. Of Offences Affecting Life.

294. Whoever does any act or omits what he is legally bound to do,
with the intention of thereby causing, or with the knowledge that he
is likely thereby to cause, the death of any person, and does by such
act or omission cause the death of any person, is said to commit the
offence of “voluntary culpable homicide.”

NOTE M.[122] _On Offences Against the Body._ Notes to Draft of Penal
Code, 53–56; Macaulay’s Complete Works (English ed., 1875), vol. VII,
pp. 493–497; Morgan and McPherson, Indian Penal Code, 225, 226, notes.

The first class of offences against the body consists of those
offences which affect human life; and highest in this first class
stand those offences which fall under the definition of voluntary
culpable homicide.

This important part of the law appears to us to require fuller
explanation than almost any other.

The first point to which we wish to call the attention of his Lordship
in Council is the expression “omits what he is legally bound to do,”
in the definition of voluntary culpable homicide. These words, or
other words tantamount in effect, frequently recur in the Code. We
think this the most convenient place for explaining the reason which
has led us so often to employ them. For if that reason shall appear to
be sufficient in cases in which human life is concerned, it will _a
fortiori_ be sufficient in other cases.

Early in the progress of the Code it became necessary for us to
consider the following question: When acts are made punishable on the
ground that those acts produce, or are intended to produce, or are
known to be likely to produce certain evil effects, to what extent
ought omissions which produce, which are intended to produce, or which
are known to be likely to produce the same evil effects to be made
punishable?

Two things we take to be evident: first, that some of these omissions
ought to be punished in exactly the same manner in which acts are
punished: secondly, that all these omissions ought not to be punished.
It will hardly be disputed that a jailer who voluntarily causes the
death of a prisoner by omitting to supply that prisoner with food, or
a nurse who voluntarily causes the death of an infant intrusted to her
care by omitting to take it out of a tub of water into which it has
fallen, ought to be treated as guilty of murder. On the other hand, it
will hardly be maintained that a man should be punished as a murderer
because he omitted to relieve a beggar, even though there might be the
clearest proof that the death of the beggar was the result of the
omission, and that the man who omitted to give the alms knew that the
death of the beggar was likely to be the effect of the omission. It
will hardly be maintained that a surgeon ought to be treated as a
murderer for refusing to go from Calcutta to Meerut to perform an
operation, although it should be absolutely certain that this surgeon
was the only person in India who could perform it, and that if it were
not performed the person who required it would die. It is difficult to
say whether a Penal Code which should put no omissions on the same
footing with acts, or a Penal Code which should put all omissions on
the same footing with acts would produce consequences more absurd and
revolting. There is no country in which either of these principles is
adopted. Indeed, it is hard to conceive how, if either were adopted,
society could be held together.

It is plain, therefore, that a middle course must be taken. But it is
not easy to determine what that middle course ought to be. The
absurdity of the two extremes is obvious. But there are innumerable
intermediate points; and wherever the line of demarcation may be drawn
it will, we fear, include some cases which we might wish to exempt,
and will exempt some which we might wish to include.

Mr. Livingston’s Code provides that a person shall be considered as
guilty of homicide who omits to save life, which he could save
“without personal danger or pecuniary loss.” This rule appears to us
to be open to serious objection. There may be extreme inconvenience
without the smallest personal danger, or the smallest risk of
pecuniary loss; as in the case which we lately put of a surgeon
summoned from Calcutta to Meerut to perform an operation. He may be
offered such a fee that he would be a gainer by going. He may have no
ground to apprehend that he should run any greater personal risk by
journeying to the Upper Provinces than by continuing to reside in
Bengal. But he is about to proceed to Europe immediately, or he
expects some members of his family by the next ship, and wishes to be
at the presidency to receive them. He, therefore, refuses to go.
Surely, he ought not, for so refusing, to be treated as a murderer. It
would be somewhat inconsistent to punish one man for not staying three
months in India to save the life of another, and to leave wholly
unpunished a man who, enjoying ample wealth, should refuse to disburse
an anna to save the life of another. Again, it appears to us that it
may be fit to punish a person as a murderer for causing death by
omitting an act which cannot be performed without personal danger or
pecuniary loss. A parent may be unable to procure food for an infant
without money. Yet the parent, if he has the means, is bound to
furnish the infant with food, and if by omitting to do so he
voluntarily causes its death, he may with propriety be treated as a
murderer. A nurse hired to attend a person suffering from an
infectious disease cannot perform her duty without running some risk
of infection. Yet if she deserts the sick person, and thus voluntarily
causes his death, we should be disposed to treat her as a murderer.

We pronounce with confidence, therefore, that the line ought not to be
drawn where Mr. Livingston has drawn it. But it is with great
diffidence that we bring forward our own proposition. It is open to
objections: cases may be put in which it will operate too severely,
and cases in which it will operate too leniently; but we are unable to
devise a better.

What we propose is this, that where acts are made punishable on the
ground that they have caused, or have been intended to cause, or have
been known to be likely to cause a certain evil effect, omissions
which have caused, which have been intended to cause, or which have
been known to be likely to cause the same effect shall be punishable
in the same manner; provided that such omissions were, on other
grounds, illegal. An omission is illegal (see clause 28) if it be an
offence, if it be a breach of some direction of law, or if it be such
a wrong as would be a good ground for a civil action.

We cannot defend this rule better than by giving a few illustrations
of the way in which it will operate. A omits to give Z food, and by
that omission voluntarily causes Z’s death. Is this murder? Under our
rule it is murder if A was Z’s jailer, directed by the law to furnish
Z with food. It is murder if Z was the infant child of A, and had
therefore a legal right to sustenance, which right a civil court would
enforce against A. It is murder if Z was a bedridden invalid, and A a
nurse hired to feed Z. It is murder if A was detaining Z in unlawful
confinement, and had thus contracted (see clause 338) a legal
obligation to furnish Z, during the continuance of the confinement,
with necessaries. It is not murder if Z is a beggar who has no other
claim on A than that of humanity.

A omits to tell Z that a river is swollen so high that Z cannot safely
attempt to ford it, and by this omission voluntarily causes Z’s death.
This is murder if A is a peon stationed by authority to warn
travellers from attempting to ford the river. It is murder if A is a
guide who had contracted to conduct Z. It is not murder if A is a
person on whom Z has no other claim than that of humanity.

A savage dog fastens on Z; A omits to call off the dog, knowing that
if the dog be not called off it is likely that Z will be killed. Z is
killed. This is murder in A, if the dog belonged to A, inasmuch as his
omission to take proper order with the dog is illegal (clause 273).
But if A be a mere passer-by it is not murder.

We are sensible that in some of the cases which we have put, our rule
may appear too lenient. But we do not think that it can be made more
severe, without disturbing the whole order of society. It is true that
the man who, having abundance of wealth, suffers a fellow creature to
die of hunger at his feet, is a bad man,—a worse man, probably, than
many of those for whom we have provided very severe punishment. But we
are unable to see where, if we make such a man legally punishable, we
can draw the line. If the rich man who refuses to save a beggar’s life
at the cost of a little copper is a murderer, is the poor man just one
degree above beggary also to be a murderer if he omits to invite the
beggar to partake his hard-earned rice? Again, if the rich man is a
murderer for refusing to save the beggar’s life at the cost of a
little copper, is he also to be a murderer if he refuses to save the
beggar’s life at the cost of a thousand rupees? Suppose A to be fully
convinced that nothing can save Z’s life, unless Z leave Bengal and
reside a year at the Cape, is A, however wealthy he may be, to be
punished as a murderer because he will not, at his own expense, send Z
to the Cape? Surely not. Yet it will be difficult to say on what
principle we can punish A for not spending an anna to save Z’s life,
and leave him unpunished for not spending a thousand rupees to save
Z’s life. The distinction between a legal and an illegal omission is
perfectly plain and intelligible. But the distinction between a large
and a small sum of money is very far from being so; not to say that a
sum which is small to one man is large to another.

The same argument holds good in the case of the ford. It is true that
none but a very depraved man would suffer another to be drowned when
he might prevent it by a word. But if we punish such a man, where are
we to stop? How much exertion are we to require? Is a person to be a
murderer if he does not go fifty yards through the sun of Bengal at
noon in May in order to caution a traveller against a swollen river?
Is he to be a murderer if he does not go a hundred yards?—if he does
not go a mile?—if he does not go ten? What is the precise amount of
trouble and inconvenience which he is to endure? The distinction
between the guide who is bound to conduct the traveller as safely as
he can, and a mere stranger, is a clear distinction. But the
distinction between a stranger who will not give a halloo to save a
man’s life, and a stranger who will not run a mile to save a man’s
life, is very far from being equally clear.

It is, indeed, most highly desirable that men should not merely
abstain from doing harm to their neighbours, but should render active
services to their neighbours. In general, however, the penal law must
content itself with keeping men from doing positive harm, and must
leave to public opinion, and to the teachers of morality and religion,
the office of furnishing men with motives for doing positive good. It
is evident that to attempt to punish men by law for not rendering to
others all the service which it is their duty to render to others
would be preposterous. We must grant impunity to the vast majority of
those omissions which a benevolent morality would pronounce
reprehensible, and must content ourselves with punishing such
omissions only when they are distinguished from the rest by some
circumstance which marks them out as peculiarly fit objects of penal
legislation. Now, no circumstance appears to us so well fitted to be
the mark as the circumstance which we have selected. It will generally
be found in the most atrocious cases of omission; it will scarcely
ever be found in a venial case of omission; and it is more clear and
certain than any other mark that has occurred to us. That there are
objections to the line which we propose to draw, we have admitted. But
there are objections to every line which can be drawn, and some line
must be drawn.