to strike the demurrer, for if defendant's claim is correct, that both the original motion and the demurrer present the same question, it will be sufficient to determine the questions upon the demurrer which was sustained by the court.

2. The question is, if two persons are engaged in a violation of the Sunday law, and one is injured by the negligence or carelessness of the other, may the injured party recover if he did not otherwise, by his own negligence, contribute to produce the injury? We think the demurrer was properly sustained. As we view the case, the facts pleaded in the answer did not, in and of themselves, show, or even tend to show, that the violation of the Sunday law by plaintiff was the efficient or proximate cause of his injury. It may be conceded that the authorities upon this question are in conflict; that the earlier cases in some of the New England states, as well as many later cases, have gone to great extremes in holding that parties who were injured while engaged in violat ing the Sunday law could not recover for injuries carelessly or negligently inflicted upon them by others. The unreasonableness of these views has been very justly criticised by all leading text writers upon the subject, and has met with the condemnation of the courts elsewhere. The following cases will illustrate the theory adopted in the line of cases spoken of: McGrath v. Merwin, 112 Mass. 467; Wallace v. Cannon, 38 Ga. 199; Wallace v. Navigation Co., 134 Mass. 95; Cratty v. City of Bangor, 57 Me. 423; Smith v. Railroad Co., 120 Mass. 490. So apparent was the injustice of this rule, adhered to in Massachusetts and some other states, that an act was passed by the legislature of Massachusetts, providing that in such cases the fact that the injured party was engaged in violating the Sunday law when he received his injury should not be a defense to an action to recover therefor. Gen. Laws Mass. 1884, c. 37. A distinction is attempted to be drawn, in some of these cases, between injuries received by one while violating the Sunday law, at the hands of one not jointly engaged in such illegal act, and the case of joint violators of the Sunday law, one of whom is injured by the negli gence of the other. To illustrate, it is held that one who travels on Sunday in violation of the law, and is assaulted by a dog, may recover, because, as is claimed, his own illegal act was "merely a condition, and not a contributing cause, of the wrong" (White v. Lang, 128 Mass. 598), while recovery is denied to one who on Sunday assisted another to clean out a wheel pit, and while doing so was injured by his companion. In the latter case it is said that "the illegal act of the plaintiff was inseparably connected with the cause of action, and contributed to his injury." The theory seems to be that because plaintiff was engaged with defendant in the same illegal work, and the accident was one

of the risks of the employment, he should not be permitted to recover. The same theory would prevent a railroad employé who was working for the company on Sunday, and was negligently injured by it, from recov ering, a doctrine abhorrent to our enlightened civilization, and fit only to be administered in the dark ages. Even in Massachusetts, where the doctrine has been carried to its extreme, if the injury is willful, recovery is permitted.

We do not think that there is any sufficient reason why, if two persons are engaged in violating the Sunday law, and without any other contributing cause one is injured, he should be denied recovery, or that it can be said in such a case, and on such facts alone, that the injury was the result of the violation of the law. To so hold would be offering a premium for negligence, and holding out as an inducement for carelessness the fact that Sunday violators owed no duty to each other as to the exercise of care to prevent accidents. Such a doctrine seems to us more pernicious in its effect than is the violation of the Sunday law itself. But why should the courts add to the violation of this law a penalty which the law itself has not affixed? If one violates the Sunday law, he is amenable to the state,-is subject to the punishment inflicted by statute. We cannot see, upon principle, why the mere act of violating such a law should in any case be held a contributing cause to the injury if one follows. If the boys had not gone to the woods, the accident would not have happened; and the same is true if they had not been in existence. So far as the pleadings show, there is nothing surrounding this accident that was in any way peculiar to the day upon which it happened. It was not more likely to happen upon Sunday than on any other day. It was not a necessary, or even, we think, probable, result of the violation of the law. At most, it can be said that it was a result which, though not to be expected. might happen. We believe most of the cases agree that the violation of the law, in order to prevent a recovery in such cases, must have been the proximate or efficient cause of the accident. The difficulty seems to be in determining what is an efficient or proximate cause of an injury in any given case. The proximate cause is the one which neeessarily sets the other causes in operation. Justice Dixon, in Sutton v. Town of Wauwatosa, 29 Wis. 21, in speaking of the rule of law applicable to cases like that at bar, and in criticising the Massachusetts cases. says: "First, that one party to the action. when called upon to answer for the consequences of his own wrongful act done to the other, cannot allege or reply the separate or distinct wrongful act of the other, done, not to himself, nor to his injury, and not neeessarily connected with, or leading to, or causing or producing, the wrongful act complained of; and, secondly, that the fault.

want of due care, or negligence on the part of the plaintiff which will preclude a recov ery for the injury complained of, as contributing to it, must be some act or conduct of the plaintiff having the relation to that injury of a cause to the effect produced by it. Under the operation of the first principle, the defendant cannot exonerate himself, or claim immunity from the consequences of his own tortious act, voluntarily or negligently done to the injury of the plaintiff, on the ground that the plaintiff has been guilty of some other and independent wrong or violation of law. Wrongs or offenses cannot be set off against each other in this way. 'But we should work a confusion of relations, and lend a very doubtful assistance to morality,' say the court in Mohoney v. Cook, 26 Pa. St. 349, if we should allow one offender against the law, to the injury of another, to set off against the plaintiff that he, too, is a public offender.' Himself guilty of a wrong not dependent on nor caused by that charged against the plaintiff, but arising from his own voluntary act or his neglect, the defendant cannot assume the championship of public rights, nor to prosecute the plaintiff as an offender against the laws of the state, and thus to impose upon him a penalty many times greater than what those laws prescribe." These principles and this reasoning seem to us applicable to the case at bar. There can be no sound reason why one who, while violating the Sunday law, through negligence injures another, should be permitted to shield himself from the wrong committed by charging the injured person with the commission of some other violation of law, which was not the usual or necessary result of the injured party's disregard of the law. Persons thus injured are not, because of their violation of the Sunday law, placed beyond the pale of the protection of the law generally, so as to prevent recovery for injuries negligently inflicted by others, to which the injured party did not contribute.

The rule has been applied in many cases. Thus in a case where an employé of a railway company engaged in his work on Sunday was injured by the negligence of the company. Railway Co. v. Frawley, 110 Ind. 18, 9 N. E. 594, and cases cited. In that case the court said: "The fact that one who sustains an injury by the negligent or wrongful act of another may have been, at the time of such injury, acting in disobedience of his collateral obligations to the state, which required of him the observance of the Sunday laws, will not prevent a recovery from one whose wrongful or negligent act or omission was the proximate cause of such injury." As was said in Railroad Co. v. Dick (Ky.) 15 S. W. 665: "There was no such connection between the doing of the work and the accident that the latter was likely to result from the former. The one did not naturally follow the other, and it could not reasonably be anticipated that it would do so. There

was no necessary, or even probable, tendeney from the one to the other. The same causes would have produced the same result upon any other day, and the fact that the accident occurred on Sunday is therefore altogether immaterial in considering the cause of it, or the question of contributory negligence. All other questions being the same, the same injury would have happened upon any other day as well." This language is peculiarly appropriate in its application to the case at bar. The accident did not follow as the natural or necessary result of plaintiff's violation of the Sunday law. It could not have been reasonably anticipated that going out hunting on Sunday would result in plaintiff's being shot. It was at most a possible, and not a probable, result of the violation of the law. In Opsahl v. Judd, 30 Minn. 126, 14 N. W. 575, plaintiff's intestate took passage on a steamboat for an excur sion on Sunday, and was thrown overboard and drowned. It was claimed that plaintiff could not recover because deceased was engaged in an unlawful act, and particeps criminis with the defendants in violating the law. The court said: "His presence did not in a [proper sense] contribute to or cause the accident; and in such cases wrongdoers, though amenable to the state or parties injured by them for their own acts, are entitled to the protection of the laws against the wrongful acts or culpable negligence of others." Carroll v. Railroad Co., 58 N. Y. 136. In Knowlton v. Railway Co., 59 Wis. 278, 18 N. W. 17, where a passenger on a street railway, on Sunday, was injured by the starting of the car as he was alighting, the court said: "The right of plaintiff to re cover is not affected by the fact that he was traveling for pleasure on the Sabbath day. He did not thereby become an outlaw, and was entitled to the same degree of care by the defendant to protect him from injury as though he had postponed his ride on the defendant's car until the following day." See McArthur v. Canal Co., 34 Wis. 139. The case of Railway Co. v. Buck, 116 Ind. 566, 19 N. E. 453, was one where the action was brought to recover damages for the killing of an employè of a railroad company, who was on Sunday, and when injured, engaged in his work for the company; and it was held that recovery might be had of the company. And see Philadelphia, W. & B. R. Co. v. Philadelphia & H. de G. Steam Towboat Co., 23 How. 209. The rule of the earlier Massachusetts cases was that one traveling on Sunday could not recover for injuries received by reason of defects in the highway; but such holding is contrary to the great weight of authority. Woodman V. Hubbard, 5 Fost. (N. H.) 67; Mohoney v. Cook, 26 Pa. St. 342; Bigelow v. Reed, 51 Me. 325; Kerwhacker v. Railway Co., 3 Ohio St. 172; Sutton v. Wauwatosa, 29 Wis. 21; Black v. City of Lewiston (Idaho) 13 Pac. 80; Sharp v. Evergreen Tp., 67 Mich. 443, 35 N. W.

In

67; 24 Am. & Eng. Enc. Law, p. 552, note 1. So, it is now quite generally held that, notwithstanding Sunday laws, one traveling on the highway upon the Sabbath, either from necessity, pleasure, or business, and who is injured by a collision with a railway train at a crossing, is not barred from recovering against the company for its negligence, from the fact that the injury occurred on Sunday. Knowlton v. Railway Co., 59 Wis. 278, 18 N. W. 17; Smith v. Railroad Co., 46 N. J. Law, 7; Carroll v. Railroad Co., 58 N. Y. 134; Sharp v. Evergreen Tp., 67 Mich. 443, 35 N. W. 67; Van Auken v. Railway Co. (Mich.) 55 N. W. 971. The case of Schmid v. Humphrey, 48 Iowa, 652, while not one where both paties were violating the Sunday law, still is in principle applicable to the case at bar. It was there said: "Suppose it be said the plaintiff was doing something prohibited by law, but which in no manner concerned the defendant, or disturbed him in any of his rights or privileges; will it do, in such a case, to say that the plaintiff is no longer under the protection of the law, and that the defendant may with impunity, by the use of positive force or through negligence, do him an injury, and that no civil liability is incurred thereby? Can the defendant be permitted to set up as a defense the fact that the plaintiff was doing something prohibited by law, which did not in fact directly contribute to the injury? We think not." Tingle v. Railroad Co., 60 Iowa, 333, 14 N. W. 320, this court held that a railway company incurs no other penalty for running trains on Sunday than the fine imposed by law, and the liability of such company for killing an animal is to be determined by the same rules as if the accident had occurred on a secular day. These cases recognize the rule that the unlawful act, to be available as a defense, must have been the proximate cause of the accident or injury. So, we have held that a mere violation of law will not necessarily constitute negligence. Vanhorn v. Railroad Co., 63 Iowa, 68, 18 N. W. 679. Judge Cooley, in his admirable work on Torts, on page 155, and after stating the Massachusetts rule, says: "The cases arising under the Sunday laws must be considered in connection with a familiar principle in the law of civil wrongs, which, as applied by other courts, would leave them without support. The principle is that, to deprive a party of redress because of his own illegal conduct, the illegality must have contributed to the injury." It follows, then, that, to make good the defense in a case like that at bar, "it must appear that a relation existed between the act or violation of law on the part of the plaintiff, and the injury or accident of which he complains; and the relation must be such as to have caused, or helped to cause, the injury or accident. It must have been some act, omission, or fault naturally and ordinarily calculated to produce the injury, or from which the injury or accident

might naturally and reasonably been anticipated, under the circumstances." Sutton v. Town of Wauwatosa, 29 Wis. 28. We do not think the facts pleaded as a defense in the third division of the answer show that the violation of the Sunday law by plaintiff was either naturally or ordinarily calculated to produce the injury, nor is it made to appear that from such illegal act alone the injury should have reasonably been anticipated. Men go hunting every day, and no one reasonably anticipates that, as a result, one will negligently shoot the other. As we have already indicated, the result was not to be expected from the act of going hunting on the Sabbath day. It was a result which, under other like circumstances, would be as likely to happen on any other day. We are unable to discover, on principle, any sound reason for holding that plaintiff should be deprived of the usual remedy given him by law for the injury sustained by the negligent act of another, because he and the other person were both violating the law, when it is clear that the violation of the law has no causative connection with the injury complained of, and plaintiff in no way contributed to the injury of which he complains. The demurrer was properly sustained. Affirmed.

STEWART v. PIERCE,

SAME V. YOUNG.

(Supreme Court of Iowa. Dec. 19, 1894.) LIBEL-WHAT ACTIONABLE.

A complaint in a libel suit, which alleges the publication of matter charging plaintiff with having, for the purpose of gain, availed himself of the confidence of his partner, and, after learning his necessities, having induced him by false representations to sell his stock to plaintiff, states a cause of action for libel, under Code, § 4097, as tending to expose him to public contempt.

Appeal from district court, Polk county; S. F. Balliet, Judge.

De

The action against James Pierce is to re cover damages for writing and publishing a certain letter alleged to be libelous, and the action against the defendant Young is for publishing the same in a newspaper. murrers were filed to each petition on the ground that the matter set out as published is not libelous. The demurrers were sustained, and, the plaintiff electing to stand on his petitions, judgments were entered against him, from which he appeals. The cases are submitted under a stipulation that the result shall be the same in each. Reversed.

Power & Huston and Gatch, Connor & Weaver, for appellant. Cummins & Wright and Guernsey & Bailey, for appellees.

GIVEN, J. 1. We have the single question whether the writing as set out in the petition is libelous. To determine this we must have in mind what constitutes libel, and then inquire whether the writing is with

in the definition. Section 4097 of the Code is as follows: "A libel is the malicious defamation of a person made public by any printing, writing, sign, picture, representation or effigy, tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse; or any malicious defamation made public as aforesaid, designed to blacken and vilify the memory of one dead, and tending to scandalize or provoke his surviving relatives or friends." With this plain definition before us we need not refer to any of the many cases defining libel, but proceed to inquire whether this writing brings these cases within the terms of the statute. In construing this writing its words are to be understood in their plain and natural import according to the ideas they are calculated to convey to those to whom they are addressed, reference being had not only to the words used, but also to the circumstances under which they were written. 13 Am. & Eng. Enc. Law, 378; Irlbeck v. Bierle, 84 Iowa, 47, 50 N. W. 36. Plaintiff alleges as inducement in substance as follows: That he is, and has been for three years last past, a resident of Illinois, and that previous thereto he had resided for many years in Iowa, in the cities of Des Moines, Mt. Pleasant, and Chariton. That he had been deputy auditor of state and clerk in the office of auditor of state for several years under John L. Brown, auditor. That he was for a time advertising solicitor for the Homestead, an agricultural newspaper published in Des Moines by an lowa corporation called the Homestead Company. That during all those years he had acquired and enjoyed a reputation for honesty, integrity, ability, and honorable dealing with business men generally among his neighbors and throughout the state. That prior to January 1, 1887, the stock in said corporation was owned one-half by the wife of John L. Brown and one-half by the defendant, who was acting as president and business manager. That about January 1, 1887, plaintiff bought of Mrs. Brown $4,000 par value of said stock, and about September 26, 1887, $6,000 par value more of said stock, thus making plaintiff and defendant equal owners. That about December 12, 1887, by written agreement among all three of the parties, plaintiff and defendant contracted to sell, and afterwards sold, to Henry Wallace, editor of said paper, $3,000 par value of said stock. The petition then charges that on January 19, 1892, defendant Pierce "wrongfully, willfully, and maliciously wrote and published of and concerning the plaintiff the following false, scandalous, and defamatory matter, the same being in a letter written and sent by defendant to Mrs. R. A. Stewart, then the wife of this plaintiff." The writing as set out covers five closely printed pages of the abstract. It is too voluminous to be set out at length. A careful reading of it in the light of the circum

stances stated as inducement stows that the following accusations are made in the writing against the plaintiff: It appears therefrom that the plaintiff and John L. Brown were, and had been for a long time, warm personal friends. That the plaintiff, knowing that Mr. Brown was financially embarrassed, said to Mr. Pierce, in substance: "Pierce, you know that Brown is a man of moods. Well, some of these times he will get blue, and want to sell his stock. I believe it would be a good plan for me to move my family to Chariton as soon as possible, and when he is in one of these moods, and ripe to sell, if I am out on the road, Mrs. Stewart could telegraph me to that effect." The writing says, "Well, Mr. Stewart did move his family to Chariton, as he said he would do, and did buy Mr. Brown's stock." Following the alleged statement of Stewart to Pierce, the writer says: "1 mentally stood aghast at this revelation of Mr. Stewart's character. For the first time I saw him a cold blooded, grasping man, who was ready to sacrifice his friend of many years' standing, who ought to have been endeared to him by years of intimate association. I saw in him a heartless, selfish being, to whose grasping disposition, more than to any other cause, Mr. Brown's troubles were due, scheming to take advantage of the very discouragements those troubles caused, scheming to take advantage of Mr. Brown's moods in order to trade him out of what Mr. Stewart knew was his only probable means of support." A further accusation fairly deducible is that Stewart falsely induced Brown to believe that Pierce and Wallace desired to get hold of a majority of the stock, and to sacrifice Brown's interest. Also that, although Mr. Wallace's right to some of the stock antedated Stewart's, it was not Stewart's purpose to recognize that right if he could avoid it, and simulated surprise, and declared that he had bought no contract from Mr. Brown to sell to Mr. Wallace. Considering the entire letter in the light of the circumstances alleged, it certainly must be understood as accusing the plaintiff of fraud, deception, and dishonesty in purchasing the stock from Mr. Brown. It charges him with having, for the purpose of gain, availed himself of the confidence of Brown as a special and confiding friend, and of his necessities and moods, and by false representations induced Mr. Brown to sell the stock to him. Surely such accusations must expose the accused to public hatred and contempt, and deprive him of the benefit of public

confidence and social intercourse.

There is a

just public sentimont that hates and condemns dishonest dealing and betrayal of friendship, and that denies to the betrayer the confidence and social intercourse that would otherwise be accorded to him. While the statutory definition of libel is plain and easily under stood, it is sometimes difficult to determin whether the facts alleged or proven in particular case come within the definition

We are satisfied, however, that the petition in this case shows a cause of action under the statute, and our conclusion is that the demurrer should have been overruled. Reversed.

KERN v. MAY.

(Supreme Court of Iowa.

Dec. 15, 1894.) REVIEW ON APPEAL-GRANT OF NEW TRIAL.

An order granting a new trial on the ground of insufficiency of the evidence will be affirmed unless an abuse of discretion clearly appears.

Appeal from district court, Linn county; J. H. Preston, Judge.

Action at law to set aside the will of James Johnson, deceased. The case was tried to a jury that returned a verdict for plaintiff, which verdict the court, on motion, set aside, and awarded a new trial, and from the ruling the plaintiff appealed. Affirmed.

preponderate in favor of plaintiff, and even though, in our judgment, the evidence might do so, still it would not necessarily follow that the discretion of the court was abused. Counsel do not differ as to law governing the case, but only as to the fact of what amounts to such an abuse. In view of a new trial, It is not proper that we should discuss the evidence leading to our conclusion. It is clearly a case in which the judgment of the district court should be controlling. As early as 31 Iowa, 378, in the case of Dewey v. Railway Co., this court cautioned trial Judges against an undue delicacy in awarding new trials, assuring them that the rule governing this court was without application to them; and it is there said "they ought to grant new trials whenever their superior and more comprehensive judgment teaches them that the verdict of the jury fails to administer substantial justice." district court saw the witnesses, and heard their statements, and its opportunity is far

The

The

GRANGER, C. J. James Johnson, now deceased, made his will on the 8th day of September, 1891. At the time of making his will, he was a widower, and had but one child, who is the plaintiff. The defendant was his niece. He owned 130 acres of land, in which he devised to his daughter a life estate. The remainder of his estate was to go to the children of the daughter, if she died leaving any. If the daughter died without issue, then the remainder was to go to the defendant. grounds upon which it is sought to set aside the will are undue influence and the intoxiIcation of the testator when the will was executed. It is agreed that the will was executed on the 8th day of September, but the parties are in dispute as to whether it was before noon or between the hours of 5 and 7 p. m. The importance of this dispute, as to the particular time, is because of evidence showing that Johnson was intoxicated the latter part of the day. The jury found, specially, that Johnson was intoxicated when he signed the will, and that it was signed at from 5 to 7 o'clock in the evening. The general verdict was that the will should be set aside. The motion for a new trial presented twelve grounds, eight of which the court overruled, and sustained it as to four grounds. From this action of the court it appears that the motion was sustained on the ground that neither the special finding nor the general verdict was supported by the evidence.

The only question for our consideration is whether or not the district court abused its discretion in awarding the new trial. Appellant contends with great earnestness and a lengthy review of the evidence that there was such abuse as to warrant us in reversing its action. We do not think so. It is true that the witnesses, in number,

verdict was of a character to do substantial justice. With our reading of the record. with the disadvantage of not seeing or hearing the witnesses, the facts important to support the verdict are not so clear as to be without doubt. We are without doubt that it is not a case of abuse of discretion, and the judgment is affirmed.

HOLDEN v. MERRITT.

(Supreme Court of Iowa. Dec. 15, 1894.) MALICIOUS PROSECUTION - EVIDENCE-VIOLATION OF POSTAL LAWS-STATING FACTS TO INSPECTOR-MALICE.

1. In an action for malicious prosecution, plaintiff must show that defendant instigated a criminal proceeding against him; that the prosecution was substantially as alleged, and ended in plaintiff's discharge or acquittal; and that it was malicious and without probable cause.

2. Evidence of statements by defendant that plaintiff had been opening his mail, and he could prove it, and that he would "put him where the dogs wouldn't bite him," and evidence that defendant complained to United States officers, and that an inspector, after an interview with defendant, filed the information on which plaintiff was arrested, and evidence that defendant afterwards said to plaintiff, "If you had behaved yourself and made no disturbance, I wouldn't have done anything with you," will sustain a finding that defendant instigated the prosecution, though there is no evidence that he ordered the process to issue, or participated in its execution.

3. Where defendant furnished an inspector with facts on which he filed an information against plaintiff charging a distinct offense, defendant cannot escape liability for malicious prosecution on the ground that the prosecution was instituted through mistaken judgment on the part of the inspector. Newman v. Davis, 10 N. W. 852, 58 Iowa, 449, distinguished.

4. Defendant first complained of plaintiff to a United States deputy marshal, who sent an inspector to interview him. The inspector filed the information wholly on facts stated to him by defendant. Held, that testimony as to the conversation between defendant and the mar shal was properly excluded.