lar result is one naturally connected, either immediately or through a series of events, with the original wrongful act: Watson on Damages and Personal Injuries, sec. 145.

On the other hand, where the result is such that no reasonable man would expect it to occur, and no knowledge is shown in the person doing the negligent or wrongful act that such a state of things exists as to make the damage probable, we think the rule is that the injury will not be regarded as actionable as against the wrongdoer: Sharp v. Powell, L. R. 7 Com. P. 253. And especially should this be true where the injury results from an act committed 340 by the injured party so obviously fraught with peril as should be sufficient to deter one of reasonable intelligence. In such a case it would seem impossible to find any ground upon which to maintain that the person guilty of the first act of negligence should be held liable to the party so injured, and the law, upon uncontroverted evidence showing such facts, without more, should relieve the original wrongdoer from liability. In such a case the intervening act of the party injured should be treated as the proximate cause of the injury: Seale v. Gulf etc. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602; Pike v. Grand Trunk Ry. Co., 39 Fed. 255.

On this phase of the subject, Mr. Watson, in section 82 of the work already referred to, says: "It is not necessary, it is believed, to show that the plaintiff's intervening act, which may render the defendant's act the remote cause of the former's injuries, amounted to contributory negligence in law. Whether, in its character, the plaintiff's act is negligent or otherwise, it will, just as an intervening cause of any other nature, if unexpected, and of a character which could not have been contemplated or foreseen, and without which no injuries would have been occasioned, relieve of liability the author of the original wrong."

Now, in view of these general rules, which it would seem, are based on common fairness and right reason, where, upon the undisputed facts as disclosed in the record, rests the responsibility for the loss of young 341 Palmer's life? Granting every inference indicating negligence on the part of the plaintiff in error which had to do with the origin of this fire, was the fatal injury sustained by him the natural or probable result therefrom? Could any reasonable man, though guilty of this negligence, have contemplated that one, from a place of safety, would go through flame and smoke to his mortal injury? Was

Am. St. Rep., Vol. 97-54

such an act within the bounds of human experience? Or was there an unbroken connection between the negligent act and the injury? On the contrary, was not this intervening act of the deceased, however heroic it may have been-one of extreme rashness, called for by no requirement of duty to his employer-the proximate cause of his death? Was it not an intermediate, efficient cause, operating to disconnect the fatal consequence from the original act of negligence? While ordinarily the answers to those questions would naturally fall within the province of the jury, and, when made in their verdict, would be regarded as binding, yet where the facts are fairly incontrovertible the question of proximate or interven ing cause is for the court: Holman v. Boston etc. Security Co., 8 Colo. App. 282, 45 Pac. 519; Stone v. Boston etc. R. R. Co., 171 Mass. 536, 51 N. E. 1; Bradley v. Ft. Wayne Ry. Co., 94 Mich. 35, 53 N. W. 915; Butcher v. Hyde, 152 N. Y. 142, 46 N. E. 305.

Whatever may hereafter be developed, at least on the record as it now is, we think these questions must 342 be answered, as a matter of law, against the contention of the plaintiff below, and that the judgment must be reversed because of a lack of evidence to support the verdict on this material point. The case is remanded for a new trial.

The Doctrine of Proximate Cause is the subject of a monographie note to Gilson v. Delaware etc. Canal Co., 36 Am. St. Rep. 807-861. If one is injured in attempting to save his property from a fire negligently set by another, the setting of the fire is the proximate cause of the injury, and the injured person may recover therefor if free from contributory negligence, but not if he rashly, recklessly, and unnecessarily exposes himsel to danger: Berg v. Great Northern Ry. Co., 70 Minn. 272, 68 Am. St. Rep. 524, 73 N. W. 648. Compare Cook v. Johnson, 58 Mich. 437, 55 Am. Rep. 703, 25 N. W. 388; Seale v. Gulf etc. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602. So the law has so high regard for human life, that it will not impute negligence to an attempt to save it, unless made under such circumstances as to constitute rashness. See the monographic note to Gilson v. Delaware etc. Canal Co., 36 Am. St. Rep. 849; Corbin v. Philadelphia, 195 Pa. St. 461, 45 Atl. 1070, 78 Am. St. Rep. 825, and cases cited in the cross-reference note thereto; West Chicago St. R. R. Co. v. Liderman, 187 Ill. 463, 79 Am. St. Rep. 226, 58 N. E. 367; Becker v. Louisville etc. R. R. Co., 110 Ky. 474, 96 Am. St. Rep. 459, 61 S. W. 997.

NEAS v. BORCHES.

[109 Tenn. 398, 71 S. W. 50.]

CONSTITUTIONAL LAW-Class Legislation—When Sustainable. A statute is not objectionable as class legislation because it applies only to merchants, if it is a mere regulation of mercantile business, designed to secure to the creditors of merchants a just participation in the distribution of their assets and prevent fraudulent transfers and practices by them. (p. 853.)

CONSTITUTIONAL LAW-Sales in Bulk or of an Entire Stock of Goods.-A statute providing that the sale of any portion of a stock of merchandise otherwise than in the ordinary course of trade or the sale of an entire stock of merchandise in bulk, shall be presumed to be fraudulent and void as against creditors of the seller, unless five days before the sale, the seller and purchaser make a full and detailed inventory showing the quantity, and so far as possible, with the exercise of reasonable diligence, the cost price to the seller of each article included in the sale; and in good faith, make full, explicit inquiry of the seller as to the names and places of residence or place of business of each of the creditors, and at least five days before the sale, in good faith, notify, or cause to be notified, personally or by registered mail, each of such creditors of whom the purchaser has knowledge, or may, with the exercise of reasonable care, acquire knowledge, of the proposed sale and of the cost price of the merchandise, is a valid exercise of the police power of the state. (p. 853.)

H. N. Cate and W. B. Hooper, for Neas.

W. J. and W. D. McSween, for Borches.

399 WILKES, J. This is an action of replevin, brought before a justice of the peace, for sixty-seven pairs of shoes, valued at sixty-seven dollars, levied upon by attachment in the hand of Neas, sheriff, in favor of Donaldson Bros.

On appeal to the circuit court the cause was heard by the judge without a jury, and there was judgment for the plaintiffs, Borches & Co., and Donaldson Bros. appealed to this court, and assigned errors.

It appears that Driscoll & Co. were engaged in business as retail merchants at Given, Tennessee, and while so engaged became indebted to Borches & Co., of Knoxville, and to Donaldson Bros., of Morristown, both being wholesale merchants, and both having sold goods to Driscoll in the course of his business. Toward the last of August, 1901, Cureton, traveling salesman for Borches & Co., demanded payment of the amount due that firm from Driscoll & Co., and, it not being paid, proceeded to buy from Heritage, the clerk of Driscoll & Co., the entire stock of Driscoll & Co., except a few odds and ends of

no material value. This was done without any notice by the seller or purchaser to the creditors of Driscoll & Co. It does not appear that there was any fraud in the sale, nor that it was contrary to the wish of the firm, nor that it was not approved and ratified by the firm. On the contrary, Heritage says without objection that he had authority to sell the goods and pay the debts of the firm, and he sold for the purpose of paying the debt of Borches & Co.; and 400 Driscoll & Co. are not complaining or calling the sale in question. Thereupon Donaldson & Co. caused attachment to be levied upon sixty-seven pairs of shoes embraced in the sale to Borches & Co., and which had been delivered to them. Borches & Co. replevied the shoes, and claim to hold the same under their purchase. The contention in the case is that the purchase was void under the provisions of acts of 1901, chapter 133. The trial judge held this act unconstitutional, and that Driscoll & Co., through their agents, had made a valid sale. The act in question is chapter 133 of the acts of 1901, and is as follows:

Caption: "An act to provide the terms upon which sales in bulk of stocks of merchandise, or of any portion thereof otherwise than in the ordinary course of trade may be made.

"Section 1. Be it enacted by the general assembly of the state of Tennessee, that a sale of any portion of a stock of merchandise otherwise than in the ordinary course of trade in the regular and usual prosecution of the seller's business, or a sale of an entire stock of merchandise in bulk, shall be presumed to be fraudulent and void as against the creditors of the seller, unless the seller and purchaser shall at least five days before the sale make a full detailed inventory, showing the quantity, and so far as possible, with the exercise of a reasonable diligence, the cost price to the seller of each article to be included in the sale; and unless such purchaser shall at least five days before 401 the sale, in good faith, make full, explicit inquiry of the seller as to the names and places of residence or place of business of each and all of the creditors of the seller, and unless the purchaser shall at least five days before the sale, in good faith, notify or cause to be notified personally or by registered mail, each of the creditors of the seller of whom the purchaser has knowledge, or can, with the exercise of reasonable diligence, acquire knowledge, of the purposed sale and of the cost price of the merchandise to be sold, and the price proposed to be paid therefor by the purchaser; and the seller shall at least five days before such sale, fully and

truthfully answer in writing each and all of said inquiries; provided, however, no suit shall be brought or maintained by any creditor against such seller or purchaser within five days after he receive notice from any source of the intended sale and purchase, and any suit so brought shall be dismissed at the cost of the plaintiff in the case.

"Sec. 2. Be it further enacted, that whenever a notice as provided in section 1 of this act is sent by registered mail, the creditor of person to whom the notice is mailed shall be presumed conclusively to have received the notice, and the time of the notice shall be dated from the time of the mailing and registration of said notice."

It is said, in the first place, that the act is class legislation, in that it applies alone to merchants dealing in merchandise, and not to other persons, such 402 as farmers, stock dealers, manufacturers, traders, and persons engaged in other business than the sale of merchandise. Admitting this, in reply it is said that the statute is a mere regulation of the mercantile business designed to secure to creditors of merchants a just participation in the distribution of the assets of such merchants, and to prevent fraudulent performances and practices by them, and is a valid exercise of the police power of the €tate.

The majority of the court is of opinion that the act in question is valid and constitutional; that it was intended to prevent the practice of fraudulently selling out goods to the injury of creditors by merchants; that it is merely a regulation of the business of merchandising; that it is not class legislation, and that the limitation of the act to merchants is not arbitrary classification; that it does not take away the property of the citizen, but only regulates the sales of merchandise in such manner as to prevent fraud. The result is that the judgment of the court below must be reversed, and, it being a replevin suit before a justice of the peace, judgment must be rendered for twice the value of the goods replevied, to wit, the sum of one hundred and thirty-four dollars, and all costs, in favor of the defendants, and against the plaintiff, which judgment may be discharged by a return of the shoes.

Mr. Justice Wilkes Dissented from the opinion of the majority of the court, on the ground that the statute in question was clearly vicious class legislation, and took away the value of the merchant's property by trammeling its sale, and that its provisions were not jus