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taken into consideration. *
* On the whole
we think the judge did not err in submitting all the
circumstances in evidence to the jury, from which, if
they were satisfied, they might infer, or presume pay-
ment."

In case 5 it was said: "That a complete legal presumption of payment of a bond or other instrument of like nature does not arise short of twenty years is well settled; but it has also been well settled that a shorter period, aided by circumstances which contribute to strengthen the presumption of payment by lapse of time, may be submitted to a jury as grounds for the presumption of the fact of payment. Slight circumstances may be given in evidence for that purpose in proportion as the presumption strengthens by the lapse of time; but still they must be such as aid the presumption arising from time. They must be, as it is said, persuasive that the time would not have been suffered to elapse had the debt remained unpaid. * * * *To aid the presumption of payment from the lapse of time the defendants offered evidence of what they called the needy circumstances of the obligee and the easy and solvent circumstances of the obligor. No doubt * * * * evidence to prove this is entirely competent."

In case 6 the court said: "The circumstance was of such a nature as tended strongly to support the theory that the note had been paid. The conduct of R. ou that occasion was wholly inconsistent with the idea that the note was unpaid. He was pressed for money, and if the amount of the note was then due him and his partner from G. it is hardly possible that he would not then have demanded its payment."

ST. LOUIS, Mo.

JOHN D. LAWSON.

ASSIGNMENT FOR CREDITORS-UNLIQUIDATED
CLAIM FOR DAMAGES NOT" DEBT"
PROVABLE AGAINST AS-

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"James Talcott to take the lease of the stores 83 and 85 Greene street for balance of the term, and to sell on commission for R. & H. Adams all their goods in stock and the entire production of their mills during the term of this agreement, 7% per cent. commission, and at the expiration of this lease to assume the lease of No. 18 Green street or for three years, until the expiration of said lease; also it is understood that if required James Talcott is to advance in cash or acceptance of R. & H. Adams, drafts not to exceed two-thirds market value of goods; also to pay Henry Adams and William Adams together 25 per cent of the net profits of this business for selling the goods and taking general oversight of this business under Mr. Talcott's supervision, said business to date from July 15, 1882, and to termi

nate at the date of the expiration of the lease of No.
18 Green street, profits to be ascertained as soon as
practicable after the closing of the books each year.
(Signed)
"JAMES TALCOTT,
"HENRY ADAMS."

On or about December 22, 1882, James Talcott presented to the assignees a claim against the assigned estate for $170,000 for unliquidated damages for breach of the contract above set forth. On October 30, 1883, judgment was entered on the report of Hamilton Cole, Esq., referee, dismissing said claim and adjudging that said assignees recover $777.46 cost and disbursements. From this judgment Talcott appeals.

Hugh Porter, counsel for assignees.

Chambers, Boughton & Prentiss, counsel for Talcott, claimant.

DALY, C. J. The claim of damages for a breach of contract was not provable as a debt under the assignment.

It has been settled by a long series of decisions that unascertained claims for damages are not provable as debts in proceedings in bankruptcy; that in claims for damages arising from breaches of contract in indemnity bonds and other possible liabilities the damages must be ascertained and fixed before the act of bankruptcy unless the contingent liability is one that has been specifically allowed by statute, and the actual prospective value of which at the time of the bankruptcy is capable of being ascertained by some mode of computing or estimating. Ex parte Marshall, 1 Montagu & Ayrton, 118; Ex parte Thompson, 1 Montagu & Bligh, 219; Ex parte Tyndal, 1 Deacon & Chitty, 291; Yellop v. Evarts, 1 Barn. & Adol. 698; Bourman v. Nash, 9 Barn. & Cress. 145; Allwood v. Partridge, 4 Bing. 209; Lancashire Coal Co., Montagu, 27; Wooly V. Smith, 3 Com. Bench, 610.

Formerly in bankruptcy proceedings in England the claim had to be due at the time of the act of bankruptcy, and the liability upon a promissory note not due until afterward was not provable. But this was relaxed by provisions in subsequent statutes which allowed contingent liabilities to be proved; where as before stated, the value could be estimated, and under our own bankruptcy act claims for unliquidated demands arising out of any contract or promise were allowed; but unless where changes have been made in this way by statute the rule has been as above stated. The reason of it was, as the bankrupt under the act was to be discharged from his debts, the proceeding was to be strictly confined to what was regarded as a debt; and for the further reason that the creditors whose claims were ascertained and fixed when the bankrupt went into or was brought into bankruptcy, were entitled to share in the distribution of his estate as soon as it was gathered in, and were not to be delayed by claims against him sounding in damages which it might take years to determine. It was said that the assets were not to be locked up pending such uncertain litigations, but that matters were to be adjusted according to the relative liabilities of the bankrupt, as they were ascertained and known at the time of the act of bankruptcy, and as his estate then existed. That it was not proper to keep the property, or a certain part of it, until it was ascertained whether somebody who had a claim for damages, which it might take years to determine, would recover any or not. Ex parte Marshal, 1 Mont. & Ay. 118. In which connection I may mention that I have known cases in our own court in which actions for the recovery of damages through mistakes and new trials remained in the court for ten years before they were finally determined.

The grounds upon which unascertained claims of the the nature of the one here presented were not allowed

to be proved as debts in bankruptcy, apply with equal force in cases of voluntary assignments for the benefit of creditors, and indeed more so, because there the instrument itself provides how and to the payment of what debts the property assigned shall be applied; and unless the assignment is impeachable for fraud or otherwise invalid, the question is one to be gathered from a fair construction of the instrument and not from the provisions of any statute. Bishop on Assignments, ch. 27.

The assignment is not set forth in the case as made up; but its provisions as to the manner in which the assigned estate is to be applied is stated in the defendant's points to be, as is usual in such instruments, that the estate is to be converted into money and applied to the payment of the just debts of the assignors. The question then is, what is to be understood as debts within the intention of the assignment?

"A debt," says Sir John Cross in Ex parte Thompson, Montagu & Bligh, 219, "is a demand for a sum certain," "and it is," says Commissioner Fontblanque in Ex parte Marshal, 1 Montague & Ayrton, 118, "a sum actually ascertained. That there must be," he says, "au ascertained debt, and not an unliquidated demand or liability, is sustained by all the cases, legal and equitable. It must be a debt existing and ascertained at the time of bankruptcy. The distinction," he says, "between debt and damages has always been rigorously adhered to."

* *

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The same exposition of what is considered a debt is to be found in our own cases. "It imports," says Monell, C. J., in Zinn v. Ritterman, 2 Abb. (N. S.) 262, 263, “a sum of money arising on contract, and not a mere claim for damages, in which it was held that in our insolvent acts it does not extend to actions where the damages are unliquidated."

In the Matter of Denny, 2 Hill, 220, which was a proceeding in this court under the Insolvent Debtor's Act, which as first enacted allowed the trustees to sue for debts or demands, but which was afterward limited to debts, it was held that the word "demand" is of much broader import than the word debt," and would embrace rights of action belonging to the debtor beyond those which could be called debts.

46

In Losee v. Bullard, 54 How. Pr. 320, where a stockholder of a corporation was sought to be made liable under the statute for a debt,it was held that a claim for damages was not a debt within the meaning of the

statute.

In Kimpton v. Bronson, 45 Barb. 625, where the question of what was a debt under the United States statute making treasury notes a legal tender for debts, it was held that the voluntary payment of a specific sum of money in discharge of an obligation was within the meaning of that statute the discharge of a debt.

In Kennedy v. Strong, 10 Johns., it was held that under the insolvent act goods received by the insolvent as a factor or trustee was not a debt within the meaning of the insolvent act, that the insolvent's discharge would in no way affect it, but that he remained equally liable to be sued upon it as well after as before his discharge; and in the Mechanics & Farmers' Bank, etc., v. Capron, 15 Johas. 467, it was held that the insolvent's liability as indorser of a promissory note, which was not due at the time of his discharge, did not constitute a debt which was or could be discharged by that proceeding, which extended only to debts that were due at the time of the assignment of the insolvent's estate, or debts contracted before that time and payable afterward; that it was a general and well-settled rule that if the creditor at the time of the assignment by the insolvent debtor has not a certain debt due or owing to which he can attest by oath so as to entitle him to a dividend of the insolvent's effects, it

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is not embraced in that proceeding; and as in that case the liability of the insolvent at the time of the assignment was merely contingent, that is, upon the nonpayment afterward of the note by the maker; it was held that the holder of the note was in no way affected by the insolvent's discharge, but might maintain an action thereafter against him; which was reaffirming substantially a prior decision of Chancellor Kent in Frost v. Carter, 1 Johns. Cas., in which the chancellor, then a judge of the Supreme Court, held that the insolvent's proceedings extended only to such debts as were due at the time of the assignment. That 'such debts must be specific, and certain sums of money to which the creditor can make oath as being justly due or to become due at some specific time; and unless the creditor at the time of the assignment be able to produce and verify such a debt, he will not be entitled to receive from the assignees his dividend of the insolvent's effects, nor will he be barred from his future action against the insolvent." And this rule that the liability at the time of the assignment must be ascertained and fixed at, a sum certain, whether payable before or after the assignment to entitle the creditor to a dividend of the insolvent's estate, has been recognized in many other cases both in this State and elsewhere.

Under the act, N. Y. Laws of 1877, ch. 466, regulating voluntary assignments, the creditor at the time specified in the notice must come in and prove his claim or he is debarred from participating in the distribution of the estate. Kerr v. Blodget, 48 N. Y. 62. The act, section 13, contemplates that the creditors shall prove their claims, and it is the practice to do this by an affidavit.

In this case there could be no compliance with the rule laid down by Chancellor Kent in Frost v. Carter, supra, for there was no debt of a certain or specific amount due at the time of the making of the assignment, or in fact any debt due them, for it was by the making of a general assignment for the benefit of creditors that Adams and Horne put it out of their power to perform the agreement made by Adams with Talcott, and it is this which Talcott relies upon as constituting a breach of the agreement. It is upon this that his claim rests, so that the claim did not come into existence until after the assignment.

The referee has found that the making of a general assignment by R. & H. Adams, and their consequent inability thereafter to manufacture and supply Talcott with goods did not amount to a breach of the agreemeut. He has found however that Talcott was entitled to receive for sale under the agreement the goods which were manufactured and in the hands of R. & H. Adams at the time of the assignment, but that it did not appear that Talcott had suffered any loss or damage by these goods not being consigned to him.

The referee in his opinion states generally that there was nothing before him upon which it would have been possible for him to have estimated the amount of profits that would or might have been realized if the contract had been fulfilled. That any estimate on the facts before him would have been purely speculative and wanting in that reasonable certainty which the law requires. This conclusion was, I think, undoubtedly correct so far as regards the claim for loss of profits on goods to be manufactured thereafter and delivered during the whole period for which the agreement was to run. In the affidavit of the claim Talcott swore that the insolvent firm was justly indebted to him in the sum of $170,000 for damages arising from the breach of the contract, but upon his examination, through various errors and mistakes, the amount sworn to in his affidavit as $170,000 was reduced by him to $130,000.

The greater part of this claim, as thus reduced to

$130,000, as appeared from his examination, was an estimate made by him upon the assumption that the sales for the following three years would be the same, or at least not less per year than they had been during the short period that the agreement was carried out. This could not be assumed in respect to the sales of this commodity, consisting of manufactured silks and cottons for the long period of three years thereafter, and the referee properly refused to find, as requested, that it appearing that the yearly sales by the firm of the production of their mills had been $1,000,000 annually, and the annual expenses had been $23,000, thellaw would presume, in the absence of evidence to the contrary, that the future sales would have yielded the same returns under the same expense, and that Talcott was entitled to have his damages for loss of prospective profits computed upon that basis.

The law makes no such presumption. Profits are re. coverable as damages where it can be shown with reasonable certainty what the party would have received if the contract had been fulfilled, as appears in the leading case of Masterson v. Mayor, etc., of Brooklyn, 7 Hill, 52, which the appellant cites and on which he relies. The plaintiff there had a contract to furnish marble from a specified quarry at a specified sum for the erection of a city hall, which, by a contract made with the owners of the quarry, he was to receive at a smaller sum than he was to get for the marble when delivered for use in the building. That difference constituted his profit, the whole of which prospectively could be accurately ascertained by the proof of that amount, and of the amount of marble he was by the contract to deliver to the defendant, and it is only in such cases where the prospective profits can be shown

this agreement, and other questions incident to it in the case.

The judgment therefore entered upon the referee's report should be Affirmed.

NEGLIGENCE-PROXIMATE CAUSE-CANCER RE-
SULTING FROM INJURY-DAMAGES.

MARYLAND SUPREME COURT, DECEMBER 20, 1883.*

BALTIMORE CITY PASS RAILWAY Co. v. KEMP. In an action brought by husband and wife to recover damages for personal injuries to wife, caused by negligence of defendants, the wife having testified that shortly after the injury complained of, a cancer was developed at the place on her person where she was injured, and medical testimony having been offered on both sides of the question, whether the cancer was the result of the injury, it was held:

1st. That it was for the jury to determine as a matter of fact whether the cancer did result from the injury received. And in determining this question they were required to consider all the circumstances and coincidences of the case in connection with the testimony of the professional witnesses.

2d.

That if the jury believed from all the evidence before them that the cancer was the natural and proximate consequence of the blow inflicted, by the negligent act of the defendant, it would properly form an element to be con. sidered in awarding damages for the pain and injury suffered by the female plaintiff.

3d. That the fact that she may have had a tendency or predisposition to cancer, could afford no proper ground of objection to her claim.

PPEAL from the Circuit Court for Howard county.

with reasonable certainty that they can be recovered A The case is stated in the opinion of the court.

as damages. Mayne on Dam. 15, 18.

It may have been possible to have ascertained with reasonable certainty the amount of profits that could have been obtained on the sale of the goods which R. & H. Adams had manufactured and on hand at the time of the assignment if they had been delivered, by proof of the market price at that time aud in accordauce with the referee's finding and action for damages for the non-delivery of these goods may have been maintainable against the members of the firm. How ever that may be, the goods were not delivered, and this was after the assignment simply a claim for an un. ascertained amount of damages which was not provable under the assignment as a debt.

The appellant requested the referee to find - which the referee would not-that upon the refusal of the assignee to deliver upon demand the goods manufactured and on hand at the time of the assignment, he (Talcott) was entitled in this proceeding to an order or decree that they make such delivery to him or account to him as assignee for the proceeds of these manufactured goods.

The assignee could not be compelled to fulfill by the delivery of goods the unperformed contract of R. & H. Adams at the time of the assignment. No authority or power was given them in that instrument to do

80.

All the property of the firm was, I assume, as is usual in such instances, conveyed to them subject to the trust already referred to, to convert it into money and apply the money to the payment of the just debts of the firm, which was what they had to do, and all they could do.

The conclusion from what has been stated is that Talcott's claim does not come under this trust, because it was not a debt, but a claim for damages unascertained, which is sufficient to dispose of this appeal without deciding whether the referee was right or wrong in holding that the making of a general assignment for the benefit of creditors was not a breach of

Bernard Carter aud A. W. Machen, for appellant. John S. Tyson and Henry E. Wootton, for appellees.

ALVEY, C. J. This is an action brought by husband and wife to recover for personal injuries suffered by the wife, caused, as it is alleged, by the negligent wrong of the defendants.

The trial below resulted in a verdict and judgment for the plaintiffs; and the defendants have appealed for alleged errors in granting a prayer on the part of the plaintiffs, and refusing a prayer on the part of the defendants.

1. It is objected by the defendants, that the instruction granted at the instance of the plaintiffs includes and authorized the jury to find for a cause of action that should have been sued for by the husband alone, without the joinder of the wife. We do not so read the instruction. It simply directed the jury, that in estimating the damages, they were to consider the health and condition of the female plaintiff before the injury complained of, as compared with her condition at the time of the trial, in consequence of the injury; "and whether the injury in its nature was permanent,and how far it was calculated to disable her from engaging in those household pursuits and employments, for which in the absence of such injury she would be qualified; and also the physical and mental suffering to which she was subjected, by reason of the injury; and to allow such damages as in the opinion of the jury would be a fair and just compensation for the injury which she sustained."

Now according to the common law upon this subject, it is perfectly well settled, that in an action husband and wife must join, and the declaration must brought for personal injuries suffered by the wife, the conclude to their damage. But in such action care *To appear in 61 Maryland Reports.

should be taken that there be not included any cause of action for which the husband should sue alone; as for instance, for loss of services, expenses incurred, and the like. Dengate v. Gardiner, 4 M. & W. 6; Stoop v. Swarts, 12 Serg. & R. 76; 1 Chitt. Pl. 82, 83. In the instruction before us reference is made to the disability of the wife to perform household duties, but that was only by way of coutrasting her former with her present condition of health. The jury were not directed or authorized, in estimating the damages, to allow for the loss of services of the wife while suffering under the disability occasioned by the injury. The instruction, in terms, confined the damages to be awarded to compensation for the personal injury sustained by the wife; and there was nothing embraced for which the husband could have sued alone. The action was brought before the passage of the act of 1882, ch. 265, which provides, "that any married woman may sue in any court of law or equity in this State, upon any cause of action, in her own name, and without the recessity of a prochein ami, as if she were feme sole;" and therefore it is unnecessary to consider whether that act extends to a case like the present.

2. The second prayer offered by the defendants, and which was refused by the court, asked that the jury be instructed that there was no legally sufficient evidence that the cancer, testified to by the witnesses, was caused by the negligence of the defendants, and therefore they should not take the cancer into consideration in estimating any damages that they might award to the female plaintiff. And upon this prayer for instruction, the defendants couteud, 1st. That there was no evidence, legally sufficient to be considered by the jury, that the cancer of which Mrs. Kemp suffered was the natural result or consequence of the negligence complained of; and 2d, that if there was in fact, any causal connection between the immediate injury received by Mrs. Kemp and the subsequent development of the cancer, the latter, to be treated as a legal effect, was too obscure, and too remote from the alleged cause, to form an element of damage for the original wrongful act.

We shall not recite in detail all the evidence upon the subject. Suffice it to state, that the evidence shows clearly and without contradiction, that Mrs. Kemp was, at the time of the accident, and for many years prior thereto, apparently in good health and condition. The accident occurred about the middle of May, 1880, and a very short time thereafter the cancer commenced its development on the injured part of her person. In her testimony, after describing the manner in which the accident occurred, and how she was thrown against the railing on the platform of the car, as she was about getting off, and the hurting of her right arm and left breast, she states that the right arm was bruised and discolored; and "where the breast was struck it was sore, and remained so from that time out. Prior to that time she had no pain or soreness; and two or three weeks afterward, a small lump appeared in the left breast," which upon being shown to her physicians, was pronounced to be a cancer. Dr. Smith first operated for its removal on the 8th of November, 1880, when it was about the size of an orange, and he operated again about the 12th of January, 1881, when the entire breast was removed, but without success in extirpating the roots of the disease. The cancer still remains, and is pronounced to be incurable. The two daughters of Mrs. Kemp, in their testimony, fully corroborate the statement of their mother, in regard to her previous good health and apparent freedom from disease, and the subsequent appearance and growth of the cancer. And the professional witnesses, while they all testify that it is impossible to know and be certain as to the origin of

cancer in any given case, yet they all agree in saying that the blow, such as that described by Mrs. Kemp, was sufficient and may have been the cause of the development of the cancer in her case. In the opinion of two of the physicians, Dr. Latimer and Dr. Turner, the blow on the breast, as described by Mrs. Kemp, was not only sufficient cause for the production of the cancer, but that they would attribute the cancer to that cause. And from the coincidences of the case we must say that their opinion does not appear to be unreasonable.

Now with this evidence in the case, unless the court could have been required to hold, as matter of law, that the production of cancer was too uncertain and too remote a consequence of the alleged injury to be allowed to be considered in estimating the damages, upon what principle could the court properly withhold the matter from the jury, upon the prayer offered by the defendants? It was for the jury to determine, as matter of fact, whether the cancer did result from the injury received. And in determining this question they were required to consider all the circumstances and coincidences of the case, in connection with the testimony given by the professional witnesses. If therefore the subject was proper to be considered by the jury at all, we are clearly of opinion that there was evidence sufficient to be considered by them.

Now the question is, whether the production of cancer, as the result of any injury received by the negligence of the defendants, under the circumstances of this case, be too remote a consequence from such negligence, to form an element of damage to the plaintiff. If it be not, then clearly the court below committed no error in refusing the second prayer of the defend

ants.

It is not simply because the relation of cause and effect may be somewhat involved in obscurity, and therefore difficult to trace, that the principle obtains, that only the natural and proximate results of a wrongful act are to be regarded. It is only where there may be a more direct and immediate sufficient cause of the effect complained of, that the more remote cause will not be charged with the effect. If a given result can be directly traced to a particular cause, as the natural and proximate effect, why should not such effect be regarded by the law, even though such cause may not always, and under all condition of things, produce like results? It is the common observation of all, that the effects of personal physical injuries depend much upon the peculiar conditions and tendencies of the persons injured; and what may produce but slight and comparatively uninjurious consequences in one case, may produce consequences of the most serious and distressing character in another. And this being so, a wrong-doer is not permitted to relieve himself from responsibility for the consequences of his act, by showing that the injury would have been of less severity if it had been inflicted upon any one else of a large majority of the human family. Hence the general rule is, that in actions of tort like the present the wrong-doer is liable for all the direct injury resulting from his wrongful act, and that too although the extent or special nature of the resulting injury could not, with certainty, have been foreseen or contemplated as the probable result of the act done. 3 Suth. on Dam. 714, 715, and the cases there cited.

The general rule is stated by Addison, in his work on Torts (3d ed.), p. 5, with as much clearness and precision as will be found in any other text writer, and he states the rule to be, "that whoever does an illegal act is answerable for all the consequences that ensue in the ordinary and natural course of events, though those consequences be immediately and directly brought about by the intervening agency of

others, provided the intervening agents were set in motion by the primary wrong-doer, or provided their acts causing the damage were the necessary or legal and natural consequence of the original wrongful act." If therefore the jury believed from all the evidence before them, that the cancer in the breast of Mrs. Kemp was the natural and proximate consequence of the blow received on her breast, by the negligent act of the defendants, it would properly form an element to be considered in awarding damages for the pain and injury suffered by her.

If by the blow received a severe contusion had been produced, resulting in an ordinary tumor or open ulcer, we suppose no question would have been raised as to the right of the plaintiff to show such results of the injury received, as indicating the extent of the injury and the degree of suffering endured. Why should a different rule be applied to this case? That the female plaintiff may have had a tendency or predisposition to cancer, can afford no proper ground of objection.

She in common with all other people of the community had a right to travel or be carried in the cars of the defendants, and she had a right to enjoy that privilege without incurring the peril of receiving a wrongful injury that might result in inflaming and developing the dormant germs of a fatal disease. It is not for the defendants to say that because they did not, or could not in fact, anticipate such a result of their negligent act, they must therefore be exonerated from liability for such consequences as ensued. They must be taken to know, and to contemplate, all the natural and proximate consequences, not only that certainly would, but that probably might flow from their wrongful act.

The defendants must be supposed to know that it was the right of all classes and conditions of people, whether diseased or otherwise, to be carried in their cars, and it must also be supposed that they knew that a personal injury inflicted upon any one with predisposition or tendency to cancer, might and probably would, develop the disease. See case of Stewart v. City of Ripon, 38 Wis. 584.

The defendants have cited and relied upon the case of Hobbs v. Landon & South-western R. Co., L. R., 10 Q. B. 111; 11 Eng. Rep. 181, as maintaining a doctrine different from that just stated by us. But in several respects that case is quite different from this. In the first place, that was an action upon contract, seeking a recovery for a breach thereof. There a passenger, who had been set down with his wife at a wrong station, sought to recover from the railway company damages for a cold which his wife had taken in consequence of the exposure in having to walk home in the rain. And it was held that the loss so occasioned was not so connected with the breach of contract as that the carrier breaking the contract would be liable.

As said by the court, the catching cold by the plaintiff's wife was not the immediate and necessary effect of the breach of contract, or was not such an effect as could fairly be said to have been in the contemplation of the parties. But we suppose, with Mr. Mayne, in his work on Damages, p. 73 (Wood's ed.), that that case would have been differently decided, if instead of putting the plaintiff down safely at the wrong place, the company had by their negligence caused any personal injury to him.

Without therefore intimating that we should accept the decision as an authority in any case, we think it has no direct application to the case before

us.

Concurring with the court below in its rulings excepted to, we must affirm the judgment. Stone, J., dissents.

Judgment affirmed.

NOTE.-In Stewart v. City of Ripon, 38 Wis. 584, cited in principal case, it was held that "the public streets and sidewalks of a city are for the use of the sick and infirm, and those with organic predisposition to disease, as well as for that of the healthy and robust; and the corporation is chargeable with knowledge that persons of the former classes constantly travel its highways, and that a bodily injury to such from a defective highway may be greatly aggravated by their diseased condition. If therefore the diseased condition of plaintiff's arm would not have occurred but for his organic tendency to scrofula, still defendant's negligence must be regarded as the proximate cause of the whole injury."

In Oliver v. Town of La Valle, 36 Wis. 592, "plaintiff, who was a married woman, and pregnant, was riding with her brother, and when crossing a defective bridge in a public highway the team broke through the bridge. The plaintiff jumped from the wagon and assisted her brother in an attempt to extricate the team. Failing in this at the request of her brother she ran some distance to obtain more assistance. The result of her fright and exertions was a miscarriage. She brought an action against the town, and the principal damages proved on the trial were the consequences of such miscarriage. It was held that such damages were the proximate result of the negligence of the town, and a verdict and judgment therefor were tained."

sus

In Brown v. Chicago,etc., R. Co.,54 Wis.342, the railway company's servants by mistake told a husband and wife to get off at the wrong place. The wife was pregnant. The walking to reach a place of comfort brought on a miscarriage. The court held that in an action against the carrier for breach of duty, instead of on its contract, it was liable for the injuries resulting from such miscarriage.

In Eten v. Luyster, 60 N. Y. 253, 259, 260, affirming 37 N. Y. Super. Ct. 486, this court held that where defendants tore down and destroyed a building built by defendant, in which plaintiff had a sum of money in a box, which was lost in the removal, that plaintiff was not bound to gather up the fragments of his scattered and broken chattels, but was at liberty to leave them where defendants placed them, looking to them for their value; that plaintiff was entitled to recover for all losses occasioned bp the trespass, including the destruction of the building, the loss of the money, and the value of the unexpired term; that although the money was kept in an unusual place, and defendants may not have suspected its presence, yet that they were liable for its loss, which was the direct result of their acts."

In Pullman Palace Car Co. v. Barker, 4 Col. 344; 34 Am. Rep. 89, 92 note, defendant's palace car, in which plaintiff was sleeping, was burned, through the negligence of defendant's servants. The burning was so rapid that she had not time to properly clothe herself, and she left it in her stocking feet. In doing so she was compelled to stand for a short time on the platform of another car, and caught a severe cold which caused a cessation of her menses and resulted in a long period of illness. The court said (p. 347): "Conceding that the appellee was compelled on account of the smoke and flames to leave the car in the half-clad condition she did, the exposure to the cold was the direct and necessary result of the appellant's negligence. Her subsequent illness however was not the result of the exposure, but the result of the exposure in her then condition."

That case was expressly disapproved in Brown v. Chicago, etc., 54 Wis. 360, the court saying:

"There is, I think, but one case cited by the learned counsel for the appellant which appears to be in direct conflict with this view of the case, except those which

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