§ 2035. Recovery against third person-Maliciously or unlawfully procuring discharge. A recovery may be had McCarty v. Timmins, 178 Mass. 378; | Lubliner v. Tiffany & Co., 54 App. 59 N. E. 1038 (not liable where serv- Div. (N. Y.) 326; 66 N. Y. Supp. 655 ant stopped to get a drink and team (not liable for false imprisonment ran away); Geary v. Stevenson, 169 caused by employee); Levy v. Ely, 48 Mass. 23; 47 N. E. 508 (not liable for App. Div. (N. Y.) 554; 62 N. Y. Supp. false imprisonment through servant's 855 (mere excess of servant's authoracts); Smaltz v. Boyce, 109 Mich. ity insufficient to relieve master, but 382; 69 N. W. 21; 3 Det. L. N. 107 former's act to have such effect must (case where act of servant was held have been done in furtherance of servnot, as a matter of law, outside of his ant's own purpose); Scott v. New employment); Johanson v. Pioneer York, 27 App. Div. 240; 50 N. Y. Fuel Co., 72 Minn. 405; 75 N. W. 719; Supp. 191; 4 Am. Neg. Rep. 534 8 Am. & Eng. Corp. Cas. N. S. 708; 4 (municipal corporation liable for acts Am. Neg. Rep. 408 (to render master of servant engaged in its business); liable, act done must pertain to duties Montgomery v. Sartirano, 16 App. of employment); Peterson v. Western Div. (N. Y.) 95; 44 N. Y. Supp. 1066; Un. Teleg. Co., 72 Minn. 41; 74 N. W. 2 Am. Neg. Rep. 758 (not liable for 1022; 40 L. R. A. 661; 8 Am. & Eng. acts not done in scope of authority); Corp. Cas. N. S. 517 (held liable for Pierce v. North Car. R. Co., 124 N. C. libelous message sent by operator); 83; 32 S. E. 399; 44 L. R. A. 316; 13 Gahagan v. Aermotor Co., 67 Minn. Am. & Eng. R. Cas. N. S. 660 (liable 252; 69 N. W. 914 (test of liability where act within scope of employstated); Yazoo & Miss. V. R. Co. v. ment even though wilful, malicious, Lambuth, 74 Miss. 758; 21 So. 801; 2 etc.); Lima R. Co. v. Little, 67 Ohio Am. Neg. Rep. 584 (not liable); Ruth St. 91; 65 N. E. 861 (rule stated that v. St. Louis Transit Co. (Mo. App. test is whether act was done in prose1903), 71 S. W. 1055 (held liable for cution of master's business, etc.); malicious prosecution); Weber v. Nelson Business College Co. v. Lloyd, Lockman (Neb. 1902), 92 N. W. 591; 60 Ohio St. 448; 42 Ohio L. J. 107; 54 60 L. R. A. 313 (held liable); Turley N. E. 471; 46 L. R. A. 314; 6 Am. v. Boston & M. R. R. (N. H. 1900), 47 Neg. Rep. 369; 71 Am. St. Rep. 729 Atl. 261 (not liable, act not within (if act of servant is within scope of scope of employment); Rowell v. Bos- authority master liable even though ton & M. R. Co., 68 N. H. 358; 44 Atl. act malicious, wilful, etc., but if act 488 (wanton, etc., manner of doing of servant is in execution of his own act immaterial where act within personal purpose and he departs from scope of servant's authority; but the authority conferred, the master is master is not responsible if act is done relieved); Harbison v. Iliff, 10 Ohio for servant's own purpose and not in S. & C. P. Dec. 58 (servant authorexecution of authority conferred); ized to do an act of violence under Holler v. Ross (N. J. 1902), 53 Atl. certain contingencies, master liable 472; 59 L. R. A. 943 (act must have for acts without regard to servant's been done in line of duty or employ- motive or whether acts wilful, etc., ment); Trapp v. Du Bois, 76 App. or even though particular acts disDiv. (N. Y.) 314; 78 N. Y. Supp. approved or unauthorized or designed 505 (held liable for libelous letter); to injure master); Rudgear v. Read

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by an employee against a third person who maliciously, or by threats or other unlawful means, procures his discharge or induces his employer to discharge him, even though the contract is silent as to the duration of the employment, or is terminable at will, and so, notwithstanding the employee would have no right of action against his employee for the discharge.70

§ 2036. Threats to discharge-Actual and exemplary damages. If laborers are threatened by a foreman of a corporation with discharge if they patronize certain tradesmen and thereby such patronage is prevented, it is held that actual and exemplary damages are recoverable from such foreman,

ing Tract. Co., 180 Pa. 333; 36 Atl. | Ohio C. C. 558; 1 Ohio C. D. 40; Flood 859; 1 Am. Neg. Rep. 523 (not liable), v. Jackson (C. A.) [1895], 2 Q. B. 21; and note; Rowan v. Prettyman, 194 Perrault v. Gauthier, Rap. Jud. Pa. St. 443; 45 Atl. 380 (master not Queb. 10 C. S. 224. Examine as to liable for acts not within line of serv- such acts and as to principle involved. ant's duty); International & G. N. Bonsail v. Reagan, 7 Del. Co. R. 545; R. Co. v. Yarbrough (Tex. Civ. App.), Morgan v. Andrews, 107 Mich. 33; 2 39 S. W. 1096; 2 Am. Neg. Rep. 656; Det. L. N. 572; 64 N. W. 869; Chipley 7 Am. & Eng. R. Cas. 733 (when liable v. Atkinson, 23 Fla. 206; 1 So. 934; and when not); Euting v. Chicago & Gore v. Condon, 87 Md. 368, 739; 39 N. W. R. Co. (Wis. 1902), 92 N. W. Atl. 1042; 40 L. R. A. 382; Glencoe S. 358; 60 L. R. A. 158 (held liable as & G. Co. v. Hudson Bros. Commiss. within scope of employment even Co., 138 Mo. 439; 40 S. W. 93; 36 L. though negligent act was done by R. 804; 60 Am. St. Rep. 560; Curran employee for his own amusement); v. Galen, 152 N. Y. 33; 46 N. E. 297; Bergman v. Hendrickson, 106 Wis. 37 L. R. A. 802, aff'g 77 Hun, 610; 59 434; 82 N. W. 304 (liable for assault N. Y. St. R. 891; 28 N. Y. Supp. 1134; by servant done within scope of au- Raycroft v. Tayntor, 68 Vt. 219; 35 thority); Coll v. Toronto R. Co., 25 | Atl. 53; 33 L. R. A. 225; 43 Cent. L. Ont. App. 55 (not liable if servant's J. 222; Huttly v. Simmons, 67 L. J. act one which master could not le- Q. B. 213; [1898] 1 Q. B. 181. gally do, or not within servant's employment).

67 London Guarantee & Accident Co. v. Horn, 101 Ill. App. 355; Perkins v. Pendleton, 90 Me. 166; 2 Chic. L. J. Wkly. 466; 38 Atl. 96; Lucke v. Clothing Cutters & T. Assembly, etc., 77 Md. 396; 26 Atl. 505; 19 L. R. A. 408; Moran v. Dunphy, 177 Mass. 485; 59 N. E. 125; 52 L. R.

68 Perkins v. Pendleton, 90 Me. 166; 2 Chic. L. J. Wkly. 466; 38 Atl. 96. But see Raycroft v. Tayntor, 68 Vt. 219; 35 Atl. 53; 33 L. R. A. 225; 43 Cent. L. J. 222.

69 London Guarantee & Accident Co. v. Horn, 101 Ill. App. 355.

70 Moran v. Dunphy, 177 Mass. 485; 59 N. E. 125; 52 L. R. A. 115; Dannerberg v. Ashley, 10 Ohio C. C. 558;

A. 115; Dannerberg v. Ashley, 101 Ohio C. D. 40.

but not from a corporation," where the act of the corporation is not done maliciously or with wanton or reckless disregard of such tradesmen's rights."

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§ 2037. Enticing away servant, etc.-Preventing servant from entering employ.-Exemplary damages may be recovered against one who knowingly, wilfully and maliciously entices away his servant in wanton disregard of the master's rights. But where the defendant corporation had no control over its tenants and interfered in no way with plaintiff's renters, who had left the latter's land to work for tenants of the defendant, verdict will not be sustained against it under a statute allowing double damages to a tenant or landlord, whose laborers or tenants, being under contract with him, are enticed away or knowingly employed or induced by another to leave his employ or the place rented before the expiration of his contract. If the lessee's servants are by threats of prosecution made by the lessor induced to leave his employ, and others are dissuaded from entering into his employ, the lessor is liable, even though he has used no force or violence, for the value of timber when removed, less the expense of removal, under a lease giving the right to the lessee to cut, remove and appropriate timber."

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§ 2038. Retention of or injury to servant's property by 71 Graham v. St. Charles St. R. Co., | [1899] 1 Ch. 255; 47 Wkly. Rep. 291. 47 La. Ann. 1656; 15 So. 707; 49 Ann. St. Rep. 436.

72 International & G. N. R. Co. v. Greenwood (Tex. Civ. App. 1893), 21 S. W. 559.

73 Bixby v. Dunlap, 56 N. H. 456; 22 Am. Rep. 475, and note, 485; Duckett v. Pool, 34 S. C. 311; 13 S. E. 542. See Rogers v. Evarts, 17 N. Y. Supp. 264, and examine citations in next following note, herein. See as to right and basis of action and right to damages Smith's Law of Master & Servant (ed. 1891, from 4th Eng. ed.), *155, top p. 136. Examine as to coercion, etc., Lyons v. Wilkins, 79 Law T. N. S. 709; 68 L. J. Ch. 146;

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Sunny Side Co. v. Read (Ark. 1902), 70 S. W. 462. Examine Bourlier v. Macauley, 12 Ky. L. Rep. 737; 15 S. W. 60; 11 L. R. A. 550; Kline v. Eubanks, 109 La. 241; 33 So. 211; Hoole v. Dorron, 75 Miss. 259; 22 So. 829; J. S. Brown Hard. Co. v. Indiana Stove Works (Tex. Civ. App. 1902), 69 S. W. 805, rev'd 73 S. W. 809. As to rights of employer and employee to relief where third parties interfere to induce employees to quit work, see Frank v. Herold, 63 N. J. Eq. 443; 52 Atl. 152.

75 Crane v. Patton (Ark.), 21 S. W. 466.

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master.-Damages are held to be recoverable from the master for wrongfully detaining a servant's property after his discharge where such property is necessary for the servant to use in his work. And although damages may be recovered for the injury which a servant sustains by having her personal property placed in the street after she had left the service, yet the amount awarded will be excessive where it is thirteen times the value of the property."

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§ 2039. Physicians and surgeons-Malpractice-Nominal damages-Punitive damages. The question of what degree of skill care and knowledge a physician or surgeon must possess is not within the scope of this treatise, but it may be stated as a general rule that if he fails to exercise the required degree of skill, care, diligence, attention and knowledge he will be liable in damages for the resulting injury to the patient, subject to such exceptions as may arise in case of failure to follow directions or contributory negligence, or to such other exceptions as may exist under the circumstances of the particular case. This rule is illustrated by the following decisions: Thus damages may be recovered for malpractice where a physician fails to exercise such reasonable care as is necessary in determining when his attendance may be safely discontinued, since his employment, in the absence of a stipulation to the contrary, continues as long as attention is required. So a recovery can be had against a physician. who neglects his duty to properly attend to a patient suffering with a broken arm. And if a physician fails to treat a person with the degree of skill ordinarily possessed by surgeons and required for setting and treating a broken arm, the measure of damages is that accruing to the patient in excess of that which would have accrued naturally from the injury had he been properly treated. Damages are also held recov

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76 Wilson v. Press Pub. Co., 70 N. Y. St. R. 770; 36 N. Y. Supp. 12; 14 Misc. 514.

77 Herkimer v. Shea, 21 Ill. App. 95. 78 But see notes on this point, 37 L. R. A. 830; 48 Am. Dec. 481; 59 Am. Rep. 392.

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79 Dashiell v. Griffith, 84 Md. 363. 35 Atl. 1004.

80 Gerken v. Plumpton, 62 App. Div. (N. Y.) 35; 70 N. Y. Supp. 793. 81 Miller v. Frey, 49 Neb. 472; 68 N. W. 630.

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erable for any failure to use ordinary care or for any neglect of a surgeon in discharging his duty to his patient even though he is not guilty of gross negligence. So where a physician makes a wrong diagnosis, through failure to exercise ordinary diligence in determining whether or not a person has the venereal disease, he is liable for the negligence, even though the examination was made for information to be furnished another and not for medical treatment; and the breaking of a marriage engagement in consequence thereof is not too remote for a recovery. Again, some damages are recoverable for negligence of a physician in failing to perform necessary acts where a woman has suffered a miscarriage thereby aggravating blood poisoning which had commenced and intensifying the pain. Nor should the recovery be limited to nominal damages where the injurious acts alleged establish that more than a mere technical injury was occasioned by the physician's treatment. So damages are recoverable for an unwarranted abandonment of a case and consequent mental suffering, especially where such abandonment was at midnight and another physician could not be obtained for over 86 an hour. Punitive damages may also be recovered where the injury complained of was death of a wife occasioned by defendant's wilful misconduct, cruelty or inhuman treatment under circumstances evidencing gross negligence. And it is held erroneous in a malpractice suit to fail to instruct that the pain and suffering caused by the injury originally received should not be considered, but that only the additional pain and suffering undergone because of the want of reasonable care and skill in treatment should be taken into consideration, with a like limitation with respect to the permanent injury, if any, and that no damages should be allowed for any aggravation of the injury or new injury by imprudent use of the injured mem

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