MEMORANDUM

TO: All Entering First Semester Students

FROM: Professors Devlin, Martin, and Sullivan

DATE: December 4, 2015

RE: Cases and Materials for Orientation

Welcome to law school.

What follows are:

a detailed schedule of the orientation program for both the day and the evening sessions;

materials ono expert, self-regulated learning, o law school instruction, and o case briefing; and

nine case decisions that you should read carefully and be prepared to discuss in the sessions on Wednesday and Thursday. (It is important for you to read the cases very closely and then brief them.) :

o four relating to contract law and o five dealing with tort law.

Do not read legal opinions as you would read a novel. It is not unusual for a five or six page opinion to take 45 minutes to an hour to read. Moreover, we suggest that you read each case two or three times. While reading, pay particular attention to the facts, and think about what is really going on. We may question you in detail about the facts of each case. Also, try to ascertain how the facts support to the court=s legal reasoning.

Pay close attention to the procedural aspects of the case. How did the case get to the particular court that has written the opinion? Also, who is the plaintiff and who is the defendant? (Sometimes this is not easy to ascertain.) What was the plaintiff seeking for relief? How did this area of the law evolve?

It is essential that you come to orientation having read the cases inside and out. That way, you will have a productive orientation and can establish good habits that will serve you well in law school.

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Good Luck!

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TABLE OF MATERIALS & CASES

PageORIENTATION SCHEDULE OF CLASSES – SPRING 2016 . . . . . . . . . . . . . . . . . . . . . . . 3

ORIENTATION SCHEDULE CHART . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

INTRODUCTION TO EXPERT LEARNING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

INTRODUCTION TO LAW SCHOOL INSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

STUDENT BRIEFS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 22

SAMPLE BRIEF FORMAT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

CASES

CONTRACT LAW

LUCY v. ZEHMER . . . . . . . . . . . . . . ... . . . . . . . . . . . . .. . . . . . . . . . . . 27

KELLER v. HOLDERMAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

OWEN v. TUNISON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

FAIRMOUNT GLASS WORKS v. CRUNDEN-MARTEN . . . . . 37

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TORT LAW

COPLEY v. WILLS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

STAMP v. 86TH STREET AMUSEMENT CO. . . . . . . . . . . . . . . . . 42

GUZZI V. NEW YORK ZOOLOGICAL SOC. . . . . . . . . . . . . . . . . . 44

HEIDEMANN v. WHEATON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

VAUGHAN V. MILLER BROS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

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MASSACHUSETTS SCHOOL OF LAW

ORIENTATION SCHEDULE OF CLASSES – SPRING 2016

January 11, 13, 14 & 16

DAY ORIENTATION

First Session:

Monday, January 11

2:00 - 2:30 p.m. Welcoming remarksDean, Michael L. Coyne,Assistant Deans, Paula Kaldis and Diane Sullivan Paula Colby-Clements, Director of Admissions

2:30 - 3:30 p.m. Structure of the Legal System and the Legal ProcessDean, Michael Coyne

3:30 - 3:40 p.m. Break3:40 - 4:40 p.m. Law Students as Self-regulated Learners

Professor Andrej Starkis

4:50 – 5:50 p.m. Orientation DinnerIntroduction to Student Organizations and Staff

Second Session:

Wednesday, January 13

1:00 – 2:00 p.m. Reading the Law and BriefingProfessor Andrej Starkis

2:00 - 2:10 p.m. Break2:10 - 3:30 p.m. Case Analysis and Briefing Contracts

Professor Joseph Devlin

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Third Session:

Thursday, January 14

12:00 – 1:00 p.m. Optional drop-in Westlaw and TWEN registration help

Library staff will be available in the computer lab to help with passwords and to answer library questions.

1:00 - 1:50 p.m. Information Resources and TechnologyI.R.C. StaffDaniel Harayda, Director of Technology

1:50 – 2:00 p.m. Break2:00 - 3:30 p.m. Case Analysis and Briefing Torts

Professor Thomas Martin

Fourth Session:

Saturday, January 16

8:00 – 9:00 a.m. Coffee and Pastries9:00 – 10:45 a.m. Skills, Success & Academic Support

Ursula Furi-Perry, Director of Academic Support

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EVENING ORIENTATION

First Session:

Monday, January 11

4:50 – 5:50 p.m. Orientation DinnerIntroduction to Student Organizations and Staff

6:00 - 6:30 p.m. Welcoming remarksDean, Michael L. CoyneAssistant Deans, Paula Kaldis and Diane Sullivan Paula Colby-Clements, Director of Admissions

6:30 - 7:30 p.m. Law Students as Self-regulated LearnersProfessor Andrej Starkis

7:30 - 7:40 p.m. Break7:40 - 8:40 p.m. Structure of the Legal System and the Legal Process

Dean, Michael Coyne

Second Session:

Wednesday, January 13

6:00 – 7:00 p.m. Reading the Law and BriefingProfessor Andrej Starkis

7:00 - 7:10 p.m. Break7:10 - 8:30 p.m. Case Analysis and Briefing Contracts

Professor Joseph Devlin

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Third Session:

Thursday, January 14

5:00 – 6:00 p.m. Optional drop-in Westlaw and TWEN registration helpLibrary staff will be available in the computer lab to help with passwords and to answer library questions.

6:00 - 6:50 p.m. Information Resources and TechnologyI.R.C. StaffDaniel Harayda, Director of Technology

6:50 – 7:00 p.m. Break7:00 - 8:30 p.m. Case Analysis and Briefing Torts

Professor Thomas Martin

Fourth Session:

Saturday, January 16

8:00 – 9:00 a.m. Coffee and Pastries9:00 – 10:45 a.m. Skills, Success & Academic Support

Ursula Furi-Perry, Director of Academic Support

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Orientation Schedule

1:00 1:30 2:00 2:30 3:00 3:30 4:00 4:30 5:00 5:30 6:00 6:30 7:00 7:30 8:00 8:30

Monday

Wednesday

Thursday*

* Optional drop-in Westlaw and TWEN registration help: 12:00-1:00 and 5:00-6:00

8:00 8:30 9:00 9:30 10:00 10:30 11:00 Saturday

Welcome - Deans

U.S. Legal System & Process

Law Student as Self-Regulated Learner Dinner & Intros Welcome -

Deans

Law Student as Self-Regulated

Learner

U.S. Legal System & Process

Reading the Law & Briefing

Analysis & BriefingContracts

I.R.C. &

Tech.

Intro Stud. Res.

Analysis & BriefingTorts

Coffee, Pastries Skills, Success & ASP

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INTRODUCTION TO EXPERT LEARNING1

There is a better way to study law, to prepare for the bar exam, to learn anything at all. That way, known as "Expert Learning," allows students to learn more, learn better and perform better than their peers. Expert learning, however, is not magic. You hold all the power within yourself to decide whether you wish to become an expert learner; you must be willing to make the necessary demands on yourself.

Expert learners have three characteristics. First, they actively engage with the material to be learned. They are not passive readers/listeners. Second, they take responsibility for their own learning. They view learning as something they do for themselves, not as something that is done for them or to them. Third, they practice "self-regulated learning;" they use specific processes to guide their own learning.

Self-regulated learning (SRL) is itself best understood as a cycle, consisting of three phases: (1) a planning phase, where the student decides what to learn and how to learn it, (2) a monitoring and implementing phase, where the student puts the plan into ac-tion while constantly assessing whether he or she is "getting it", and (3) an evaluation phase, where the student determines whether the plan has produced efficient and optimal learning.

The planning phase of SRL sets the stage for learning. During this phase, the student analyzes the learning task, sets learning goals (making sure these goals are very clear) and plans learning strategies (considering a variety of ways to approach the learning task). During the monitoring and implementing phase, the student implements the plan while monitoring to make sure he or she is making progress toward the learning goals. During the evaluation phase, the student determines how well the chosen strategies worked and how those strategies might be improved. Engaging in this cycle of planning, implementation, monitoring and evaluating causes the students to be constantly reflecting on their learning. These students take control over their own learning and become experts not only in the general principles of learning, but also in what learning approaches work best for them. The students also become experts in knowing when they are learning and when they are not and how to get the help they need when they are not learning.

What Expert Learners Know and DoYears of academic studies of expert learning and expert learners have helped educa-

tional psychologists develop a prototype of expert learners, a list of the skills and knowledge that expert learners possess. Expert learners are said to:

1. Control their own learning processes2. Be active, not passive, in their approach to learning3. Be motivated (i.e., enjoy learning, have specific short-term and long-term

goals, etc.)4. Be disciplined (i.e., have learned good habits and use them consistently)

1 From Michael Hunter Schwartz, EXPERT LEARNING FOR LAW STUDENTS, 2nd Ed., Carolina Academic Press (2008). (Edited as indicated, with numerous emphasis added. Other footnotes original.)

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5. Be more aware of themselves as learners (i.e., know their own strengths andweaknesses)

6. Initiate opportunities to learn7. Set specific learning goals for themselves8. Have a large repertoire of learning strategies from which to choose9. Know not only what to learn but how to learn

10. Plan their approach to learning11. Monitor their learning while it's happening (i.e., notice when they're not learning

and adjust their learning approach)12. Be more adaptive because they self-monitor while learning13. Reflect more upon their own learning14. Evaluate the effectiveness of learning approaches and strategies15. Be more sensitive to the demands of specific academic tasks16. Use learning strategies selectively and strategically17. Attribute failures to correctable causes and attribute successes to personal com-

petenceProfessors Peggy Ertmer and Timothy Newby of Purdue University, two of the leading authors in the expert learning field, summarize these ideas by explaining that expert learners:

are aware of the knowledge and skills they possess, or are lacking, and use ap-propriate strategies to actively implement or acquire them. This type of learner is self-directed and goal oriented, purposefully seeking out needed information, incorporating and applying a variety of strategic behaviors to optimize academic performance . . . . By using the knowledge they have gained of themselves as learners, of task requirements, and of specific strategy use, they can deliberately select, control, and monitor strategies to achieve desired goals and objectives. By being consciously aware of themselves as problem solvers and by monitoring and controlling their thought processes, these learners are able to perform at a more expert level, regardless of the amount of specific domain knowledge possessed.2

2 Peggy A. Ertmer & Timothy J. Newby, The Expert Learner: Strategic, Self-Regulated and Reflective, 24 INSTRUCTIONAL SCIENCE 1, 5-6 (1996). (Emphasis added.)

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INTRODUCTION TO LAW SCHOOL INSTRUCTION3

To be in a position to apply expert learning principles to your legal education, you need to know what you can expect to encounter in law school. Law school teaching methods are dramatically different from the teaching methods you have encountered so far in your academic career. In law school, professor expectations of students are high; students who take command over their own education, who act upon their learning rather than passively receiving it, excel. In many respects, your only choice is whether to take control over your learning or to perform far below your capability.

The Goals of Legal Education* * * [I]n the largest sense, there is only one goal and it's one that is simply stated:

produce graduates ready to be lawyers. That goal statement, however, is so broad, encompassing so many skills, so much knowledge and such particular values, that it offers prospective law students little insight into their imminent law school experience. * * * [I]n this discussion, I have divided the goals of legal education into three broad categories: knowledge, skills and values.

Acquiring Knowledge in Law SchoolWhat you need to know at this early stage of your legal education is that law school

instruction and testing require you to acquire enormous amounts of knowledge. You need to learn a vast repertoire of new terminology, hundreds of rules of law and case holdings, legal policy and theory (the reasons underlying the rules and holdings), and the mental steps involved in performing a wide variety of skills. You also need to learn how all this information is interrelated.

Acquiring Skills in Law SchoolEven if you learn perfectly every bit of information presented to you in your texts and

classes, you still may fail to do well in law school. This seeming contradiction is not really a contradiction at all and, in fact, it is the single most important thing you need to know about the goals of legal education. Although knowledge is crucial to success in law school, the goal of legal education is to teach you skills. In other words, what you need to learn is how to apply the knowledge you acquire and how to effectively do so in writing.

This point is crucial and often overlooked by new law students. Every semester since I started teaching law in 1991, there have been a few students who have come to see me and have expressed shock at the low grades they received for my course. In each in-stance, the student has said something like, "But I knew the law cold. I knew it back-wards and forwards and every other which way." Some students have even asked me to test their knowledge on the spot so that I would know how much they knew. These stu-dents were smart enough to realize that they had to assimilate vast amounts of knowledge to succeed in law school. They failed to realize, however, that such knowledge was not enough.

Law school requires you to acquire a lot of knowledge, but, for the most part, your exams and papers do not test whether you have learned it. Rather, law school examinations require you to demonstrate your skills in applying that knowledge to new situations. To understand this relationship between skills and knowledge, forget

3 From Michael Hunter Schwartz, EXPERT LEARNING FOR LAW STUDENTS, 2nd Ed., Carolina Academic Press (2008). (Edited as indicated, with numerous emphases added. Other footnotes original.)

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about law school for a moment. Think about a skill that you have learned, such as playing the piano, performing a sport (such as basketball) or even doing long division. In each instance, knowledge was crucial. In piano, you needed to know, among other things, what the musical notes are and where each note is located on your piano. In basketball, you needed to know all the rules of the game, who your teammates were and what skills they possessed. To do long division, you needed to know what a division problem looks like, each of the steps involved in performing long division, and the order in which you must perform those steps.

In each of these settings, however, such knowledge is not enough to be able to per-form the skills. You also needed to practice performing the skills and obtain feedback on how you were performing, and the skills came neither quickly nor easily. In learning piano, you needed to spend endless hours practicing both on your own and while a piano teacher watched, listened and gave you feedback on the positioning of your hands and fingers, your use of the pedals and your transitions between notes. To learn to play basketball, you needed to devote countless hours practicing your shooting, passing, re-bounding and defending both on your own and while a coach watched and gave you feedback on the positioning of your hands, arms, feet and eyes, your assessment of what was happening, your anticipation of what was about to happen, and the positioning of your body in relation to the other players with whom you were playing. Even long divi-sion required you to practice hundreds of long division problems, both on your own and while a teacher (and/or parent) watched and gave you feedback on your computations (the dividing, multiplying and subtracting involved in doing long division), on the extent to which you were following the procedure required to perform long division (e.g., did you remember the correct next step) and on how you could check your work for accuracy (such as by multiplying your result by the dividend).

From this discussion, a pattern or set of best practices for acquiring new skills should be evident to you: (1) acquiring new skills requires you to practice those skills over and over; (2) acquiring new skills requires you to seek out and obtain feedback from ex-perts; and (3) acquiring new skills requires a large expenditure of time by you and does not necessarily come easily or quickly.

In law school, while students must learn many skills, the principal skills they must learn are legal reasoning and expressing their reasoning in writing. As you will learn in these materials, legal reasoning and expressing legal reasoning in writing are multi-faceted skills. Like other skills, they require you to possess vast stores of knowledge, but, also like other skills, you must learn to combine and use knowledge in ways that, while similar to skills you already possess, are unique. For this reason, for most students, law school skills come neither quickly nor easily; they are the product of countless hours of study and practice and require you to make frequent efforts to obtain feedback from your peers and professors.

Acquiring Values in Law SchoolMost law schools also strive to teach certain values to their students. In particular, the

following values are most common: (1) professionalism, (2) service to others, to the profession and to the community, (3) sensitivity to the differences among us, (4) lifelong learning, and (5) competency.

Law professors try to inculcate these values in students by making them a focus of a course, a class session or a discussion; by modeling those values; by including specific graduation requirements believed to help students develop those values; and by struc-turing learning activities that allow the students to develop the values on their own.

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Although law schools strive to teach these skills, knowledge and values to their stu-dents, they also assume that you already possess the skills, knowledge and values neces-sary to make it possible for you to learn what you need to learn in law school.The Skills, Knowledge and Values Law Schools Assume You Already Possess

Law schools, as graduate schools and perhaps by necessity, assume that law students possess certain skills, knowledge and values before they come to law school. Those skills, knowledge and values fall within five major categories: reading comprehension skills, writing skills, learning skills, knowledge about the legal system and openness to being taught.

First, [most] law schools assume that entering law students possess excellent reading comprehension skills. Law students must digest enormous amounts of reading material in short periods of time. The reading material is abstract, complicated, and, sometimes, dry. Much of it includes language that is either unfamiliar to non-lawyers or uses familiar language in unfamiliar ways. For this reason, new law students who are concerned about their reading comprehension skills should . . . consider getting some help.

Second, [most] law schools assume students enter law school with excellent writing skills. Specifically, law schools assume that entering students possess excellent knowledge and skill regarding grammar, usage, paragraphing, punctuation, organization and other related writing skills. You therefore need to either possess those skills, or you need to work to enhance your existing skills before you start law school. Fortunately, there are many resources available to you to help you enhance your writing skills. In addition to the excellent resources reflected in the bibliography at the end of this chapter, many colleges and universities have developed websites that are accessible to anyone interested in enhancing her writing skills. Four excellent websites are:

http://webster.comment.edu/grammar/index.htm http://owl.english.purdue.edu/handouts/index.html http://www.ucalgary.ca/UofC/eduweb/grammar/ and http://cwx.prenhall.com/bookbind/pubbooks/biays/.4

Third, [most] law schools assume that you possess excellent learning skills, including organization, memorization, examination preparation and other learning skills. . . . If you adopt [the attitude that your learning is your responsibility and] the practices [available to you], you [can] possess the learning skills you need.

Fourth, law schools assume you possess basic knowledge of legal civics, including knowledge of how cases move through our legal system, court hierarchies, the concepts of precedent and appeal, how statutes become law, the roles lawyers commonly play and the work they do, the state and federal constitutions and their roles within our legal sys-tem and the relationships between federal and state law and between our state and federal court systems. . . . [You will need to quickly] fill in any gaps in your knowledge in any of these areas.

Finally, law schools assume you are teachable. In other words, because law school skills, at least in some respects, are unique and difficult to learn, law students need to be open to feedback, eager to learn, willing to change and unafraid of criticism. The most successful law students do not fear criticism but, instead, welcome it.

4 I am grateful to my colleague, Professor Mark Patrick, the former writing instructor/specialist at Western State University College of Law, for these suggestions.

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To do well in law school and learn the skills, knowledge and values, you need to be ready to deal with the unique aspects of law school instruction . . . .

The Four Main Units of Law School InstructionRules, Court Opinions, Public Policies, and Hypotheticals and the Integration of These Units

Law school instruction principally deals with four related units of instruction taught together as an integrated whole: rules of law, court opinions, public policies and hypotheticals. Each law school course focuses on particular bodies of rules, court opinions, public policies and hypotheticals. Thus, a criminal law class will focus almost exclusively on the rules, court opinions, public policies and hypotheticals that make up the criminal law whereas a tort law course will focus almost exclusively on the forms these units of instruction take in the context of tort law. More particularly, each class session deals with a particular subset of all the rules, court opinions and public policies and involves discussions of hypotheticals raising issues that require students to apply and critically evaluate the rules, court opinions and public policies.

The discussion below explains what each of the units of instruction are, how each unit works, and how all the units work together in law school instruction.

Rules of LawA rule of law is an abstract statement of fact describing a context in which the rule

applies (unless the rule applies in all contexts), identifying a set of required circum-stances and setting forth the legal consequence if that required set of circumstances ex-ists; in many cases, a rule also identifies a limited abstract context in which it applies.For example, consider a simple rule of contract law known as the Statute of Frauds. The rule is:

A contract for the sale of an interest in land is not enforceable unless it is in writing and signed by the parties to it.5

On its face, this rule seems extraordinarily simple. Close examination reveals that the rule is much more complicated, providing details about the context in which the rule applies, the required set of circumstances and the legal consequence if the required circumstances are not met:

The context in which the rule applies:(1)The parties have a contract, and(2)The contract is for the sale of land.

The required set of circumstances:(1)The contract must be in writing, and(2)The writing must be signed.

The consequence if the required circumstances are not present: The contract is not enforceable.

5 SECOND RESTATEMENT OF CONTRACTS, §§110, 131.

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Note that the context and set of circumstances are abstract. There is no reference to a particular contract, to a particular piece of land or to particular parties; rather, the rule applies to any contract, to any piece of land and to any set of parties.

* * *As I explain below, rules are usually, but not always, taught in conjunction with court

opinions and by considering their application to particular disputes or events. Because lawyers use rules to analyze legal problems and law school exams test students' develop-ment of the skills involved in applying rules to facts, rules are a unit of instruction with which students must become comfortable. Soon after you start law school, you must be-come adept at understanding and using rules. Law students and lawyers also must be adept at reading rules. This process, which is much more complex than it sounds, requires an extraordinary degree of attention to detail and the ability to take a complex sentence or paragraph and convert it into a list of subparts . . . .

The need for attention to detail and of converting rules to subparts can be seen by considering a definition of murder:

Murder is the unlawful killing of another human being with malice aforethought, and malice aforethought can be shown by an intent to kill, by an intent to inflict grievous bodily harm, by an abandoned and malignant (depraved) heart or by application of the felony murder rule.Rules must be broken down into sub-parts so that a judge can ascertain whether the

state, the plaintiff, or the defendant has proven everything that must be proven. With respect to murder, for example, the definition translates to five required elements of proof, i.e., five things the state must prove to convict someone of murder. The last of these elements can be proven in any of four alternative ways. Here's an outline of the required elements:

1. There has been a killing;2. The killing was unlawful;3. It was a human being who was killed;4. The person killed was someone other than the person who did the killing, and5. The murder was committed with "malice aforethought," which can be shown

by any one of the following:a. An intent to killb. An intent to inflict grievous bodily harmc. Acting with an abandoned and malignant heart with respect to the potentially

consequences of your actions ORd. Committing a killing that requires application of the felony murder rule.

The details are important because the definitions of the words used, the choice of con-junctions (i.e., and, or, but) and the punctuation (the location of the commas) can change how a court would apply this definition to determine whether a particular accused defendant is guilty. To be able to apply this rule to determine whether the defendant has committed a murder, the court also needs definitions of "unlawful" (Does that include killings made in self-defense? In defense of one's home? To keep someone from stealing one's new car?), "killing" (Does that include people who would have imminently died from natural causes anyway?), "human being" (Does that include an unborn fetus?), "intent," "grievous bodily harm," "depraved heart," "felony" and the "felony murder rule." In addition, the court must understand the implications of the "and" between the

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words "abandoned" and "malignant" and the implications of the word "or" near the end of the murder definition. . . . For now, you simply need to know that rule deconstruction is a skill you study and must develop in law school.

The skill is particularly crucial because law school exams require law students to apply rules to particular fact patterns in ways similar but not identical to how judges do it. Accordingly, law school exams assume that, you, as a law student, have so mastered the skills of identifying and understanding the legal implications of details, definitions, conjunctions, punctuation, and can break rules into their subparts so that you are able to apply each subpart to a hypothetical factual situation.

Court OpinionsA court opinion is a published document created by a judge or a set of judges acting

together in which the author describes the nature and facts of the dispute before the court, the parties, the relevant rules of law and precedents (past decided court opinions), the court's decision, and the reasons for the courts decision. Law school texts, called "case-books," consist mostly of court opinions that the editors of the casebook have selected, edited and organized. A case is selected because it established an important new rule, be-cause its results or reasoning have had particular influence on other courts, because of its notoriety or its interesting facts, because the court's discussion of the issues was particu-larly insightful or even, sometimes, because the court's discussion was particularly lacking in insight. In fact, as you read a court opinion, it is often productive to try to figure out why the casebook editor selected the case. Casebook editors seldom include the full text of the cases they use, choosing to edit cases so they are easier to read. Appendix B at the end of this book contains both a casebook version of a case and a full, unedited version.

Lawyers analyze and use a court opinion by focusing on its holding and the court's reasoning in reaching that holding. . . .

* * *Students, therefore, study cases as sources of rules, as examples of how to apply rules,

and as ends in themselves. Consequently, you must become an expert at learning from cases. . . . [S]uccessful law students read court opinions differently than their less successful peers. . . . Public Policies

Most generally, a public policy is a statement about what the speaker (the [legislature, a] judge, a lawyer, or a legal commentator) believes is good for society. For example, encouraging people to drive their cars carefully is a statement of public policy; that policy is reflected in hundreds of traffic laws, such as speed limits, restrictions on passing, and signaling requirements. Lawyers, judges and law professors use the term public policy more specifically as a way of describing the social good served by a rule of law or by a precedent. For example, the rule making people liable for the injuries they cause by driving their cars carelessly can be said to serve the social good described in the above policy statement. Similarly, the rule requiring contracts for the sale of land to be in a signed writing serves the social goods of encouraging people to act cautiously and carefully when they make contracts for the sale of land.

Public policies are important to law students for two different reasons. First, they help us understand rules and holdings by providing reasons why the courts and legislatures have chosen to adopt those rules and holdings. Studies of learning have shown that knowing the reasons underlying any principle helps students understand the principle and to be better able to apply it. Secondly, lawyers use public policies to bolster their arguments in court. . . .

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Students therefore must learn to discern the policies that underlie the rules and court decisions they are studying. Sometimes, courts and legislatures explicitly state the policy reasons underlying their decisions; many times, however, courts and legislatures are not so explicit. Students therefore must learn to derive the underlying policies by reasoning out the social good the court or legislature must have had in mind. . . . Hypotheticals

The term "hypothetical" is shorthand for the term "hypothetical question." It consists of a statement of a set of facts that gives rise to one or more legal disputes. A hypo-thetical may be as short as a sentence or as long as three pages. It may involve multiple parties or just two. Law professors write their hypothetical by using court opinions not assigned to the students (usually with some modifications), by changing key facts in the court opinions assigned to the students, by adapting newspaper stories to raise issues the students have studied or by simply coming up with a story from scratch and making the hypothetical an appropriate length and degree of difficulty.

The student's tasks in response to a hypothetical are to identify the legal questions raised, to identify each fact that is relevant to the resolution of each legal question raised, to articulate all of the potentially applicable law, (i.e., the relevant rules or case

holdings), to explain how lawyers representing each of the parties would argue for a result

favoring their respective clients, to predict how a court would decide the matter, and to explain why a court would decide the matter in that way.

Law professors and lawyers refer to these last parts, where the student articulates the parties' arguments and predicts the result and explains why, as the legal analysis. Legal analysis will, by far, be the primary focus during your first year of law school. While students must know the rules and case holdings and be able to identify the legal questions, they are ultimately evaluated as law students and lawyers by how well they perform legal analysis. In large part, law school exams and bar exams test students' ability to perform each of the skills described above and students' possession of the knowledge necessary to perform those skills (such as the knowledge of the rules and holdings).

Professors ask students in class to analyze hypothetical as a way of testing the stu-dents' understanding of the court opinions they have read and as a way of helping the students practice the skills which students' law school exams will test. These shorter hypotheticals are usually stated verbally and usually relate directly to the court opinions or rules on which the class is working.

Examination hypotheticals are almost always longer and almost never identify the rel-evant court opinions or rules. It is common for an exam hypothetical to conclude with one or more calls of the question. A call of the question is a statement of the students' assignment with respect to the hypothetical question. It may be very broad, such as a statement that the students should "discuss the issues." It also may consist of a set of nar-row questions, such as a list of objections to the admission of evidence on an evidence law examination and a request that the students analyze each objection.Rules, Court Opinions, Policies and Hypotheticals Are Integrated in Law School Instruction

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As the foregoing discussion of rules, court opinions, public policy and hypothetical suggests, students seldom study any of these units in isolation. The rules come from the court opinions (or from statutes or secondary sources), and they are often applied in the court opinions. The court opinions or statutes explicitly state the relevant policy considerations or the students must derive the policies by thinking through the rationale underlying the holdings or statutes. Finally, the hypotheticals require knowledge and application of the rules, holdings and policies.

This integration, however, is not always evident to law students because of the tech-nique by which most law professors teach law, the "Socratic" Method.

The "Socratic" Method and What It Assumes Students Will Be DoingFirst-year law school instruction is most commonly described as "Socratic" in tech-

nique.6 Law professors who use this method ask their students many, many questions. Professors select one student (or, occasionally, two or three) and ask the student to de-scribe aspects of a rule or court opinion the class is studying. For court opinions, many professors require the selected student to identify the relevant facts, the court's holding and the policy underlying it. For rules, many professors require the selected student to break the rule down into a set of sub-requirements and articulate the policy underlying the rule. The professor then focuses on the application of the holding or rule by asking the selected student to apply the rule or holding to a hypothetical or series of hypothet-icals. This questioning places significant demands on students in terms of class prepara-tion. Professors assume the students will come to class having carefully read and briefed . . . all the assigned court opinions. Some professors have even been known to simply walk out of class and leave the students to fend for themselves if the professor deems the students unprepared for class.

Because students are called on individually and must speak and think while their peers and their instructor are listening, there is a performance aspect to law school classroom experiences. This performance aspect can be intimidating and may be anxiety provoking. The most important thing for students to do is to treat this experience as neither more significant nor less significant than it really is. On the one hand, your per-formance in this context has very little, if any, bearing on your grades or your opportu-nities for extracurricular experiences, such as moot court and law review, and your per-formance in classroom discussions says virtually nothing about what kind of lawyer you will be. There is certainly no evidence that the students who say smart (or just many) things in class get the better grades or become better lawyers. Consequently, students should never sacrifice necessary learning activities, such as listening in class, doing all the work for all their classes, studying for examinations and timely completing their pa-pers, simply to appear smart to their peers and their professors when called on in class.

On the other hand, the experience is not meaningless. By speaking in class, you are actively engaging in your own learning, and it is well established that active learners outperform passive ones on every measure of success. In fact, your preparation for class helps you take in your new learning, because, as I explain in the next chapter, students retain new learning better when they have connected it to prior learning. Moreover, when you speak in class, you give yourself an opportunity to practice your new skills and get professorial feedback on your efforts. Certainly, one telling characteristic of all expert law students is that they seek and obtain as much practice and feedback as possi-ble. In fact, for some students . . . articulating their understandings out loud is an essential part of their learning process (if you are such a person, frequent participation in class may be necessary). Finally, because you are getting feedback (and in many law school classes,

6 There is evidence that upper division law school courses are more often taught using lecture methodologies.

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this oral feedback is all you get other than your results on your examinations), you are gaining information about your level of understanding and your approach to learning the material.

The Socratic Method requires students to learn vicariously because, while the selected student is being questioned, all the rest of the students in the class are not directly involved. Each of your law professors assumes that all the students in the class are play-ing along, answering the questions in their heads and learning from the selected student's answers to the questions and the professor's responses to the student's answers. The non-selected students, therefore, must learn what they need to learn from this vicarious experience of watching the professor question one of their peers. They must practice by trying to answer the professor's questions in their heads and apply the professor's feedback and corrections to their answers. The vicarious nature of the experience means that the demand on students to self-evaluate their performance and regulate their own learning is particularly high; it is very unlikely your professors will have any idea whether you (or any of your peers, for that matter) have learned the material.

The method also involves self-teaching because professors assume students will learn all they need to learn by watching and by studying on their own or in groups. In fact, law professors seldom tell students the relationships among the concepts studied in the course, expecting students to identify those relationships on their own. In most instances, professors also do not tell the students how to identify legal issues or how to perform legal analysis, leaving it to the students to figure these things out for themselves. In fact, this method's most traditional practitioners refuse to answer student questions, believing students should figure out the answers on their own. Most significantly, in more than half of all law school classes, students' first feedback on their development of law school skills is their grades on their midterms and finals. Consequently, law students, perhaps even more than their peers in other educational settings, must self-regulate their own learning. Each law student is the only person in a position to assess whether the student actually has learned what she needs to learn.

Law students, law professors, practicing lawyers and judges all have commented on the difficulty and discomfort this methodology produces in new law students. Part of that discomfort likely does stem from this approach to law school instruction. It also likely stems from, among other things, the differences between college and law school, the competitiveness of many law students, the high cost of law school, and because learning any new skill, particularly an intellectual one like legal reasoning, is very stressful.

Law School StressWhile nearly all law students regard law school as stimulating, most also experience

it as stressful. If you feel stress during your first year in law school, you are in the majority. This discussion is not offered to scare you or to try to dissuade you from law school. The goal . . . in fact, is to give you a set of tools that will allow you to both enjoy and succeed in law school. I have chosen to address the issue of law school stress to let you know that you are not alone and to help you understand the sources of the stress so that you can better deal with them.

First, as noted above, the nature of law school teaching produces stress. Students are on the spot in class, are expected to learn vicariously and, ultimately, must take much more responsibility for their own learning than they ever have taken in their lives. Moreover, most students are not told that they must learn vicariously or teach them-selves. They either must figure it out on their own or suffer the consequence: poor grades. . . .

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Second, many students also experience stress because of the arguably untoward em-phasis on legal analysis in law school classes. Most law professors urge students to ig-nore their emotional reactions to cases and focus exclusively on developing dispassionate arguments that focus on the application of rules and cases. They do so in an effort to help helping students learn to make arguments grounded in rules and cases. This emphasis has the unintended effect of making students believe that their sense of justice, of right and wrong, is irrelevant. As a result, some students come to believe they have to sacrifice parts of themselves to do well in law school. That belief is incorrect. Rather than striving to ignore your sense of justice, use your gut reactions to help you become a better law student and lawyer. There is no doubt that students who argue with cases as they read them get higher law school grades than their peers who simply accept court assertions without question . . . . Similarly, try to convert those gut reactions into legal arguments; for example, in all bodies of law, fairness is an important public policy. If a rule or case will produce an unjust result, develop an argument that the rule or case either should not be applied or should be overruled.

Third, law school is an educational culture shock, particularly for students who at-tend law school right out of college. In many college courses, particularly those in the social science areas, much of the learning involves memorizing and much of the tests demand little more than regurgitation of learned material. In law school, students must memorize and be able to regurgitate even larger amounts of material, yet this regurgita-tion does not ensure even passing grades. Such knowledge, while essential to success on law school examinations and papers, is insufficient to achieve success because law school exams and papers require application of the knowledge. . . .

Fourth, law school requires a significant amount of challenging work. Many students come to law school having succeeded in college without having had to work very hard. The difficulty of the work combined with the quantity of work can be daunting. Many law students devote as much as 50 hours per week to their studies. For this reason, find-ing balance between school work and other interests is crucial, and developing the time management skills . . . will improve the quality of your law student life. If you master the skills . . . you will be the kind of student who works smarter, not harder.

Fifth, in many law schools, the students are very competitive. Students who have succeeded in all of their past educational endeavors quickly discover that all of their peers in law school also have always succeeded. In addition, some employers give enormous weight to students' law school grades, which increases the grade pressure on students. The issue causes many students to constantly focus on how well they are doing in law school, rather than on their motivations for being in law school, to join the profession. Five years after students graduate, however, graduates' law school grades have become irrelevant; clients do not chose their lawyers based on the lawyers' law school grades but, rather, based on their qualities as lawyers and as people. Moreover, many of the most rewarding jobs held by lawyers are much less grade-dependent. While there is no doubt that . . . students [strive to] get good grades in law school, [the] ultimate purpose is [for] students [to] learn well in law school and for the rest of their lives.

Sixth, law school exams, particularly in the first year, emphasize and reward only one of the many skill sets required by lawyers. While lawyers agree that great lawyers are skilled at legal analysis, lawyers also agree that great lawyers possess many other skills. Take a look at the list below. The list is a partial statement of the skills commonly pos-sessed by great lawyers. Note which skills you already possess.

• Legal analysis• Reading comprehension• Impromptu public speaking

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• Rehearsed public speaking• Listening• Empathy• Workload management• Factual investigation• Questioning other people• Brainstorming solutions to problems• Selecting from among possible solutions to problems• Negotiating• Researching• Helping people in conflict work out compromises• Making connections with people• Identifying connections among idea• PassionIt is easy to assume that, if you do not get grades that place you at the top of your law

school class, you will not be a good lawyer. As the above list reveals, that assumption is false.

Finally, law school exams and papers are much harder than college exams [and papers]. Law school exams and papers demand significant skills, and the skills these exams and papers demand are ones many (perhaps most) students did not possess before they came to law school. On law school exams and papers, students must be able to identify previously unseen problems by type, draw analogies, apply rules and cases and predict outcomes in disputes their professors (experts in the subject area) have designed not to have obvious outcomes.

While the demands of law school inevitably produce discomfort, the picture is not re-ally a bleak one. Knowing you will encounter stress and knowing it is normal and survivable (and most students survive just fine) makes the stress easier to deal with it. Law school is also exciting and stimulating. Learning new things, if you are open to the experience, is one of the greatest gifts of being a human being. Plus, the learning and thinking skills you acquire will serve you for the rest of your life, even if you never practice law.

If you do find yourself feeling anxious or depressed, here are a few suggestions:• Avoid turning to alcohol or drugs for solace. As I am sure you know, neither

alcohol nor drugs will actually make you feel better, but both can cause considerable harm. If you do find yourself using alcohol or drugs inappropriately, please get help.

• Find a healthy outlet. Time with friends and family and exercise can be excellentoutlets for relieving stress.

• Avoid people who add to your anxiety or depression. Some students act as ifthey prefer the feeling of stress. After every exam, they feel a need to discusseverything they believe you should have addressed, and they feel unconcernedabout their effect on you or whether they may be wrong. Other students focuson what is bothering them and lose sight of the good things in their lives.Choose to be with people who choose to be happy.

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• Get help. Do not simply assume that it's ok to be unhappy; [get help].• Try meditation. For some students, meditation can be a wonderful alternative to

feeling stress.• Train yourself to be more optimistic. Dr. Martin Seligman's Learned Optimism

is a wonderful resource that you can use to train yourself to react differently tostressful events. He emphasizes that you can train yourself to be an optimist byviewing bad events as temporary, as isolated to particular circumstances, and assomething you can overcome by effort and your abilities.

Having learned how law is taught, knowing that law school makes particularly significant demands on students, and understanding that expert self-regulating learners outperform novices, you [need] to begin [to practice] self-regulated learning.

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STUDENT BRIEFSWe thought this might help first year students. Good luck.

Professors Coyne, Devlin and Sullivan       A student brief is a short summary and analysis of a case prepared for use in classroom discussion. It is a set of notes, presented in a systematic way, in order to sort out the parties, identify the issues, ascertain what was decided and by whom, and analyze the reasoning behind decisions taken by the courts.

       Although student briefs always include the same items of information, the form in which these items are set out can vary. The format for a student brief given to you in orientation is a good one to follow but you should use a format that is easy for you to refer to quickly. 

The parties and how to keep track of them       Beginning students often have difficulty identifying relationships between the parties involved in court cases. The following definitions may help:

Plaintiffs sue defendants in civil suits in trial courts. The Government (state or federal) prosecutes defendants in criminal cases in trial courts.

The Government can also be a party in a civil suit. The losing party in a criminal prosecution or a civil action may appeal by asking a higher

(appellate) court to review the case on the ground that the trial court judge made a mistake. If the law gives the loser the right to a higher court review, his or her lawyers may appeal. If the loser does not have this right, his or her lawyers may ask the appellate court for a writ of certiorari. Under this procedure, the appellate court is being asked to exercise its lawful discretion in granting the case a hearing for review. For example, a defendant convicted in a federal district court has the right to appeal this decision to the Circuit Court of Appeals and this court cannot refuse to hear it. The party losing in this appellate court can request that the Supreme Court review the case, but, unless certain special circumstances apply, has no right to a hearing.

These two procedures, appeals and petitions for certiorari are sometimes loosely grouped together as "appeals." However, there is, as shown, a difference between them, and you should know it.

A person who seeks a writ of certiorari, that is, a ruling by a higher court that it hear the case, is known as a petitioner. The person who must respond to that petition, that is, the winner in the lower court, is called the respondent.

A person who files a formal appeal demanding appellate review as a matter of right is known as the appellant. His or her opponent is the appellee.

The name of the party initiating the action in court, at any level on the judicial ladder, always appears first in the legal papers. For example, Ado Tatum and others sued in Federal District Court for an injunction against Secretary of Defense Melvin Laird and others to stop the Army from spying on them. Tatum and his friends were the plaintiffs and the case was then known as Tatum v. Laird. The Tatum group lost in the District Court and appealed to the Court of Appeals, where they were referred to as the appellants, and the defendants became the appellees. Thus the case was still known as Tatum v. Laird. When Tatum and his fellow appellants won in the Court of Appeals,

Laird and his fellow appellees decided to seek review by the Supreme Court. They successfully petitioned for a writ of certiorari from the Supreme Court directing the Court of Appeals to send up the record of the case (trial court transcript, motion papers, and assorted legal documents) to the Supreme Court. At this point the name of the case changed to Laird v. Tatum: Laird and associates were now the petitioners, and Tatum and his fellows were the respondents. Several church groups and a group of former intelligence agents obtained permission to file briefs (written arguments) on behalf of the respondents and to help persuade the Court to arrive at a decision favorable to them. Each of these groups was termed an amicus curiae, or "friend of the court." In criminal cases, switches in the titles of cases are common, because most reach the appellate courts as a result of an appeal by a convicted defendant. Thus, the case of Arizona v. Miranda later became Miranda v. Arizona.

Student Briefs       These can be extensive or short, depending on the depth of analysis required and the demands of the instructor. A comprehensive brief includes the following elements:

       1. Title and Citation       2. Facts of the Case       3. Issues       4. Decisions [Holdings]       5. Reasoning [Rationale]       6. Separate Opinions       7. Analysis

1. Title and Citation

       Title. The title of the case shows who is opposing whom. The name of the person who initiated legal action in that particular court will always appear first. Since the losers often appeal to a higher court, this can get confusing. The first section of this guide shows you how to identity the players without a scorecard.

       Citation. This tells how to locate the report of the case in the appropriate case reporter. There are case reporters for every region of the country.

2. Facts of the Case

       A good student brief will include a summary of the pertinent facts and legal points raised in the case. It will show the nature of the litigation, who sued whom, based on what occurrences, and what happened in the lower court or courts.

       The facts are often conveniently summarized at the beginning of the court's published opinion. Sometimes, the best statement of the facts will be found in a dissenting or concurring opinion. WARNING: Judges are not above being selective about the facts they emphasize. This can become of crucial importance when you try to reconcile apparently inconsistent cases, because the way a judge chooses to characterize and "edit" the facts often determines which way he or she will vote and, as a result, which rule of law will be applied.

       The fact section of a good student brief will include the following elements:

A one-sentence description of the nature of the case, to serve as an introduction.

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A statement of the relevant law, with quotation marks or underlining to draw attention to the key words or phrases that are in dispute.

A summary of the complaint (in a civil case) or the indictment (in a criminal case) plus relevant evidence and arguments presented in court to explain who did what to whom and why the case was thought to involve illegal conduct.  

A summary of actions taken by lower courts, for example, defendant convicted; conviction upheld by appellate court; Supreme Court granted certiorari

3. Issues

       The court often states the issues or questions of law raised by the facts peculiar to the case explicitly. Again, watch out for the occasional judge who misstates the questions raised in the lower court's opinion, by the parties on appeal, or by the nature of the case.

       Constitutional cases frequently involve multiple issues, some of interest only to litigants and lawyers, others of broader and enduring significance to citizens and officials alike. Be sure you have mastered both.

       With rare exceptions, the outcome of an appellate case will turn on the meaning of a provision of the Constitution, a law, or a judicial doctrine. Capture that provision or debated point in your restatement of the issue. Set it off with quotation marks or underline it. This will help you later when you try to reconcile conflicting cases.

       When noting the issues, it may help to phrase them in terms of questions that can be answered with a precise "yes" or "no."

       Example: The famous case of Brown v. Board of Education involved the applicability of a provision of the 14th Amendment to the U.S. Constitution to a school board's practice of excluding Black pupils from certain public schools solely on account of their race. The precise wording of the Amendment is "No State shall... deny to any person within its jurisdiction the equal protection of the laws."  The careful student would begin by picking out the key phrases from this Amendment and deciding which of them were really at issue in this case. Assuming that there was no doubt that the school board was acting as the State, and that Miss Brown was a "person within its jurisdiction," then the key issue would be "Does the exclusion of students from a public school solely on the basis of race amount to a denial of 'equal protection of the laws’?”

       Of course, the implications of this case went far beyond the situation of Miss Brown, the Topeka school board, or even public education. They cast doubt on the continuing validity of prior decisions in which the Supreme Court had held that restriction of Black Americans to "separate but equal" facilities did not deny them "equal protection of the laws." Make note of any such implications in your statement of issues at the end of the brief, in which you set out your observations and comments.

       Note: More students misread cases because they fail to see the issues in terms of the applicable law or judicial doctrine than for any other reason. There is no substitute for taking the time to frame carefully the questions, in order that they actually incorporate the key provisions of the law in terms capable of being given precise answers. It may also help to label the issues, for example, "procedural issues," "substantive issue," "legal issue," and so on. Remember, too, that instructors may use the same case for different purposes, so the pain of briefing is to identify those issues in the case, which are of central importance to the topic under discussion in class.

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4. Decisions

       The decision, or holding, is the court's answer to a question presented to it for answer by the parties involved or raised by the court itself in its own reading of the case. There are narrow procedural holdings, for example, "case reversed and remanded," and broader substantive holdings, which deal with the interpretation of the Constitution, statutes, or judicial doctrines. If the issues have been drawn precisely, the holdings can be stated in simple "yes" or "no" answers or in short statements taken from the language used by the court.

5. Reasoning

       The reasoning, or rationale, is the chain of argument, which led the judges in either a majority or a dissenting opinion to rule as they did. This should be detailed in a point-by-point fashion.

6. Separate Opinions

       Both concurring and dissenting opinions should be subjected to the same depth of analysis to bring out the major points of agreement and disagreement with the majority opinion. Make a mental note of how each justice voted and how he or she lined up. Knowledge of how judges of a particular court normally line up on particular issues is essential to anticipating how they will vote in future cases involving similar issues.

7. Analysis

       Here the student should evaluate the significance of the case, its relationship to other cases and the subject being studied, its place in history, what it shows about the Court, its members, its decision-making processes, or the impact it has on litigants, government, or society. It is here that the implicit assumptions and values of the Justices should be probed, the "rightness" of the decision debated, and the logic of the reasoning considered.

A Cautionary Note       Don't brief the case until you have read it through at least once. Don't think that because you have found the judge's best purple prose you have necessarily extracted the essence of the decision. Look for unarticulated premises, logical fallacies, manipulation of the factual record, or distortions of precedent. Then ask, how does this case relate to other cases in the same general area of law? What does it show about judicial policy making? Does the result violate your sense of justice or fairness? How might it have better been decided?

(Piece has been adapted from an article prepared by CUNY Law School faculty.)

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SAMPLE BRIEF FORMAT

CASE NAME ______________________________________________________ AND CITATION: ______________________________________________________

PRESENT COURT, ______________________________________________________ YEAR CASE DECIDED ______________________________________________________ AND HOW IT ______________________________________________________ GOT HERE: ______________________________________________________

PLAINTIFF AND ______________________________________________________ DEFENDANT IN ______________________________________________________ ORIGINAL CASE: ______________________________________________________

KEY FACTS: ______________________________________________________ ______________________________________________________ ____________________________________________________________________________________________________________

MAJOR ISSUE: ____________________________________________________________________________________________________________

HOLDING: ____________________________________________________________________________________________________________

REASONING: __________________________________________________________________________________________________________________________________________________________________

OTHER ISSUES: __________________________________________________________________________________________________________________________________________________________________

DISPOSITION: ______________________________________________________

COMMENTS: ____________________________________________________________________________________________________________

SUPREME COURT OF APPEALS OF VIRGINIA

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W. O. LUCY and J. C. LUCYv.

A. H. ZEHMER and Ida S. ZEHMER

Record No. 4272

November 22, 1954

Present, Eggleston, Buchanan, Miller, Smith and Whittle, JJ.

Suit to compel specific performance of land purchase contract claimed by defendant vendors to have been entered into as joke. The Circuit Court, Dinwiddie County, J. G. Jefferson, Jr., J., entered decree denying specific performance and dismissing suit and purchasers appealed. The Supreme Court of Appeals, Buchanan, J., held that evidence showed that contract represented serious business transaction and good faith sale and purchase of farm, that no unusual circumstances existed in its making, and that purchasers were entitled to specific performance.

Reversed and remanded.

VIRGINIA REPORTS SYNOPSIS

Appeal from a decree of the Circuit Court of Dinwiddie county. Hon J. G. Jefferson, Jr., judge presiding.

Reversed and remanded.

The opinion states the case.

VIRGINIA REPORTS HEADNOTES AND CLASSIFICATION

(1) Contracts - Drunkenness - Not a Defense Where Party Comprehends Nature of Instrument.

1. In suit by Lucy against Zehmer and his wife for specific performance of a contract requiring the latter to convey a farm to Lucy for a stated price, the evidence contradicted Zehmer's contention that he was too drunk to make a valid contract, since he clearly was able to comprehend the nature and consequence of the instrument he executed.

(2) Contracts - Claim Instrument Signed in Jest - Unsupported by Evidence.

2. There was no merit to defendants' position that the instrument sought to be enforced was signed in jest and was not intended by either party to be a binding contract. The appearance and terms of the contract and the circumstances of its execution indicated clearly that the transaction was one of serious business.

(3) Contracts - Assent of Party - May Be Established by Conduct.

3. Even if defendants entered into the contract in jest, they were bound by it since Lucy believed, and from the acts and statements of the Zehmers was warranted in believing, that the contract represented a serious and good faith sale and purchase. Mental assent is not essential for the formation of a contract; if the words and acts of a party, reasonably interpreted, manifest an intention to agree, his contrary but unexpressed state of mind is immaterial.

(4) Specific Performance - Should Be Decreed Where No Inequity Shown.

4. Specific performance is not a matter of absolute right, but rests in sound judicial discretion. Yet where, as in the instant case, there is no circumstance of fraud, misrepresentation, sharp dealing or other inequity, specific performance should be ordered.

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END OF VIRGINIA REPORTS HEADNOTES AND CLASSIFICATION

A. S. Harrison, Jr. and Emerson D. Baugh, for the appellants.

Morton G. Goode and William Earle White, for the appellees.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

This suit was instituted by W. O. Lucy and J. C. Lucy, complainants, against A. H. Zehmer and Ida S. Zehmer, his wife, defendants, to have specific performance of a contract by which it was alleged the Zehmers had sold to W. O. Lucy a tract of land owned by A. H. Zehmer in Dinwiddie county containing 471.6 acres, more or less, known as the Ferguson farm, for $50,000. J. C. Lucy, the other complainant, is a brother of W. O. Lucy, to whom W. O. Lucy transferred a half interest in his alleged purchase.

The instrument sought to be enforced was written by A. H. Zehmer on December 20, 1952, in these words: “We hereby agree to sell to W. O. Lucy the Ferguson Farm complete for $50,000.00, title satisfactory to buyer,” and signed by the defendants, A. H. Zehmer and Ida S. Zehmer.

The answer of A. H. Zehmer admitted that at the time mentioned W. O. Lucy offered him $50,000 cash for the farm, but that he, Zehmer, considered that the offer was made in jest; that so thinking, and both he and Lucy having had several drinks, he wrote out “the memorandum” quoted above and induced his wife to sign it; that he did not deliver the memorandum to Lucy, but that Lucy picked it up, read it, put it in his pocket, attempted to offer Zehmer $5 to bind the bargain, which Zehmer refused to accept, and realizing for the first time that Lucy was serious, Zehmer assured him that he had no intention of selling the farm and that the whole matter was a joke. Lucy left the premises insisting that he had purchased the farm.

Depositions were taken and the decree appealed from was entered holding that the complainants had failed to establish their right to specific performance, and dismissing their bill. The assignment of error is to this action of the court.

W. O. Lucy, a lumberman and farmer, thus testified in substance: He had known Zehmer for fifteen or twenty years and had been familiar with the Ferguson farm for ten years. Seven or eight years ago he had offered Zehmer $20,000 for the farm which Zehmer had accepted, but the agreement was verbal and Zehmer backed out. On the night of December 20, 1952, around eight o'clock, he took an employee to McKenney, where Zehmer lived and operated a restaurant, filling station and motor court. While there he decided to see Zehmer and again try to buy the Ferguson farm. He entered the restaurant and talked to Mrs. Zehmer until Zehmer came in. He asked Zehmer if he had sold the Ferguson farm. Zehmer replied that he had not. Lucy said, “I bet you wouldn't take $50,000.00 for that place.” Zehmer replied, “Yes, I would too; you wouldn't give fifty.” Lucy said he would and told Zehmer to write up an agreement to that effect. Zehmer took a restaurant check and wrote on the back of it, “I do hereby agree to sell to W. O. Lucy the Ferguson Farm for $50,000 complete.” Lucy told him he had better change it to “We” because Mrs. Zehmer would have to sign it too. Zehmer then tore up what he had written, wrote the agreement quoted above and asked Mrs. Zehmer, who was at the other end of the counter ten or twelve feet away, to sign it. Mrs. Zehmer said she would for $50,000 and signed it. Zehmer brought it back and gave it to Lucy, who offered him $5 which Zehmer refused, saying, “You don't need to give me any money, you got the agreement there signed by both of us.”

The discussion leading to the signing of the agreement, said Lucy, lasted thirty or forty minutes, during which Zehmer seemed to doubt that Lucy could raise $50,000. Lucy suggested the provision for having the title examined and Zehmer made the suggestion that he would sell it “complete, everything there,” and stated that all he had on the farm was three heifers.

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Lucy took a partly filled bottle of whiskey into the restaurant with him for the purpose of giving Zehmer a drink if he wanted it. Zehmer did, and he and Lucy had one or two drinks together. Lucy said that while he felt the drinks he took he was not intoxicated, and from the way Zehmer handled the transaction he did not think he was either.

December 20 was on Saturday. Next day Lucy telephoned to J. C. Lucy and arranged with the latter to take a half interest in the purchase and pay half of the consideration. On Monday he engaged an attorney to examine the title. The attorney reported favorably on December 31 and on January 2 Lucy wrote Zehmer stating that the title was satisfactory, that he was ready to pay the purchase price in cash and asking when Zehmer would be ready to close the deal. Zehmer replied by letter, mailed on January 13, asserting that he had never agreed or intended to sell.

Mr. and Mrs. Zehmer were called by the complainants as adverse witnesses. Zehmer testified in substance as follows:

He bought this farm more than ten years ago for $11,000. He had had twenty-five offers, more or less, to buy it, including several from Lucy, who had never offered any specific sum of money. He had given them all the same answer, that he was not interested in selling it. On this Saturday night before Christmas it looked like everybody and his brother came by there to have a drink. He took a good many drinks during the afternoon and had a pint of his own. When he entered the restaurant around eight-thirty Lucy was there and he could see that he was “pretty high.” He said to Lucy, “Boy, you got some good liquor, drinking, ain't you?” Lucy then offered him a drink. “I was already high as a Georgia pine, and didn't have any more better sense than to pour another great big slug out and gulp it down, and he took one too.”

After they had talked a while Lucy asked whether he still had the Ferguson farm. He replied that he had not sold it and Lucy said, “I bet you wouldn't take $50,000.00 for it.” Zehmer asked him if he would give $50,000 and Lucy said yes. Zehmer replied, “You haven't got $50,000 in cash.” Lucy said he did and Zehmer replied that he did not believe it. They argued “pro and con for a long time,” mainly about “whether he had $50,000 in cash that he could put up right then and buy that farm.”

Finally, said Zehmer, Lucy told him if he didn't believe he had $50,000, “you sign that piece of paper here and say you will take $50,000.00 for the farm.” He, Zehmer, “just grabbed the back off of a guest check there” and wrote on the back of it. At that point in his testimony Zehmer asked to see what he had written to “see if I recognize my own handwriting.” He examined the paper and exclaimed, “Great balls of fire, I got ‘Firgerson’ for Ferguson. I have got satisfactory spelled wrong. I don't recognize that writing if I would see it, wouldn't know it was mine.”

After Zehmer had, as he described it, “scribbled this thing off,” Lucy said, “Get your wife to sign it.” Zehmer walked over to where she was and she at first refused to sign but did so after he told her that he “was just needling him [Lucy], and didn't mean a thing in the world, that I was not selling the farm.” Zehmer then “took it back over there * * * and I was still looking at the dern thing. I had the drink right there by my hand, and I reached over to get a drink, and he said, ‘Let me see it.’ He reached and picked it up, and when I looked back again he had it in his pocket and he dropped a five dollar bill over there, and he said, ‘Here is five dollars payment on it.’' * * * I said, ‘'Hell no, that is beer and liquor talking. I am not going to sell you the farm. I have told you that too many times before.’”

Mrs. Zehmer testified that when Lucy came into the restaurant he looked as if he had had a drink. When Zehmer came in he took a drink out of a bottle that Lucy handed him. She went back to help the waitress who was getting things ready for next day. Lucy and Zehmer were talking but she did not pay too much attention to what they were saying. She heard Lucy ask Zehmer if he had sold the Ferguson farm, and Zehmer replied that he had not and did not want to sell it. Lucy said, “I bet you wouldn't take

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$50,000 cash for that farm,” and Zehmer replied, “You haven't got $50,000 cash.” Lucy said, “I can get it.” Zehmer said he might form a company and get it, “but you haven't got $50,000.00 cash to pay me tonight.” Lucy asked him if he would put it in writing that he would sell him this farm. Zehmer then wrote on the back of a pad, “I agree to sell the Ferguson Place to W. O. Lucy for $50,000.00 cash.” Lucy said, “All right, get your wife to sign it.” Zehmer came back to where she was standing and said, “You want to put your name to this?” She said “No,” but he said in an undertone, “It is nothing but a joke,” and she signed it.

She said that only one paper was written and it said: “I hereby agree to sell,” but the “I” had been changed to “We”. However, she said she read what she signed and was then asked, “When you read ‘We hereby agree to sell to W. O. Lucy,’ what did you interpret that to mean, that particular phrase?” She said she thought that was a cash sale that night; but she also said that when she read that part about “title satisfactory to buyer” she understood that if the title was good Lucy would pay $50,000 but if the title was bad he would have a right to reject it, and that that was her understanding at the time she signed her name.

On examination by her own counsel she said that her husband laid this piece of paper down after it was signed; that Lucy said to let him see it, took it, folded it and put it in his wallet, then said to Zehmer, “Let me give you $5.00,” but Zehmer said, “No, this is liquor talking. I don't want to sell the farm, I have told you that I want my son to have it. This is all a joke.” Lucy then said at least twice, “Zehmer, you have sold your farm,” wheeled around and started for the door. He paused at the door and said, “I will bring you $50,000.00 tomorrow. * * * No, tomorrow is Sunday. I will bring it to you Monday.” She said you could tell definitely that he was drinking and she said to her husband, “You should have taken him home,” but he said, “Well, I am just about as bad off as he is.”

The waitress referred to by Mrs. Zehmer testified that when Lucy first came in “he was mouthy.” When Zehmer came in they were laughing and joking and she thought they took a drink or two. She was sweeping and cleaning up for next day. She said she heard Lucy tell Zehmer, “I will give you so much for the farm,” and Zehmer said, “You haven't got that much.” Lucy answered, “Oh, yes, I will give you that much.” Then “they jotted down something on paper * * * and Mr. Lucy reached over and took it, said let me see it.” He looked at it, put it in his pocket and in about a minute he left. She was asked whether she saw Lucy offer Zehmer any money and replied, “He had five dollars laying up there, they didn't take it.” She said Zehmer told Lucy he didn't want his money “because he didn't have enough money to pay for his property, and wasn't going to sell his farm.” Both of them appeared to be drinking right much, she said.

She repeated on cross-examination that she was busy and paying no attention to what was going on. She was some distance away and did not see either of them sign the paper. She was asked whether she saw Zehmer put the agreement down on the table in front of Lucy, and her answer was this: “Time he got through writing whatever it was on the paper, Mr. Lucy reached over and said, ‘Let’s see it.’ He took it and put it in his pocket,” before showing it to Mrs. Zehmer. Her version was that Lucy kept raising his offer until it got to $50,000.

The defendants insist that the evidence was ample to support their contention that the writing sought to be enforced was prepared as a bluff or dare to force Lucy to admit that he did not have $50,000; that the whole matter was a joke; that the writing was not delivered to Lucy and no binding contract was ever made between the parties.

It is an unusual, if not bizarre, defense. When made to the writing admittedly prepared by one of the defendants and signed by both, clear evidence is required to sustain it.

In his testimony Zehmer claimed that he “was high as a Georgia pine,” and that the transaction “was

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just a bunch of two doggoned drunks bluffing to see who could talk the biggest and say the most.” That claim is inconsistent with his attempt to testify in great detail as to what was said and what was done. It is contradicted by other evidence as to the condition of both parties, and rendered of no weight by the testimony of his wife that when Lucy left the restaurant she suggested that Zehmer drive him home. The record is convincing that Zehmer was not intoxicated to the extent of being unable to comprehend the nature and consequences of the instrument he executed, and hence that instrument is not to be invalidated on that ground. 17 C.J.S., Contracts, § 133 b., p. 483; Taliaferro v. Emery, 124 Va. 674, 98 S.E. 627. It was in fact conceded by defendants’ counsel in oral argument that under the evidence Zehmer was not too drunk to make a valid contract.

The evidence is convincing also that Zehmer wrote two agreements, the first one beginning “I hereby agree to sell.” Zehmer first said he could not remember about that, then that “I don't think I wrote but one out.” Mrs. Zehmer said that what he wrote was “I hereby agree,” but that the “I” was changed to “We” after that night. The agreement that was written and signed is in the record and indicates no such change. Neither are the mistakes in spelling that Zehmer sought to point out readily apparent.

The appearance of the contract, the fact that it was under discussion for forty minutes or more before it was signed; Lucy's objection to the first draft because it was written in the singular, and he wanted Mrs. Zehmer to sign it also; the rewriting to meet that objection and the signing by Mrs. Zehmer; the discussion of what was to be included in the sale, the provision for the examination of the title, the completeness of the instrument that was executed, the taking possession of it by Lucy with no request or suggestion by either of the defendants that he give it back, are facts which furnish persuasive evidence that the execution of the contract was a serious business transaction rather than a casual, jesting matter as defendants now contend.

On Sunday, the day after the instrument was signed on Saturday night, there was a social gathering in a home in the town of McKenney at which there were general comments that the sale had been made. Mrs. Zehmer testified that on that occasion as she passed by a group of people, including Lucy, who were talking about the transaction, $50,000 was mentioned, whereupon she stepped up and said, “Well, with the high-price whiskey you were drinking last night you should have paid more. That was cheap.” Lucy testified that at that time Zehmer told him that he did not want to “stick” him or hold him to the agreement because he, Lucy, was too tight and didn't know what he was doing, to which Lucy replied that he was not too tight; that he had been stuck before and was going through with it. Zehmer's version was that he said to Lucy: “I am not trying to claim it wasn't a deal on account of the fact the price was too low. If I had wanted to sell $50,000.00 would be a good price, in fact I think you would get stuck at $50,000.00.” A disinterested witness testified that what Zehmer said to Lucy was that “he was going to let him up off the deal, because he thought he was too tight, didn't know what he was doing. Lucy said something to the effect that ‘I have been stuck before and I will go through with it.’”

If it be assumed, contrary to what we think the evidence shows, that Zehmer was jesting about selling his farm to Lucy and that the transaction was intended by him to be a joke, nevertheless the evidence shows that Lucy did not so understand it but considered it to be a serious business transaction and the contract to be binding on the Zehmers as well as on himself. The very next day he arranged with his brother to put up half the money and take a half interest in the land. The day after that he employed an attorney to examine the title. The next night, Tuesday, he was back at Zehmer's place and there Zehmer told him for the first time, Lucy said, that he wasn't going to sell and he told Zehmer, “You know you sold that place fair and square.” After receiving the report from his attorney that the title was good he wrote to Zehmer that he was ready to close the deal.

Not only did Lucy actually believe, but the evidence shows he was warranted in believing, that the contract represented a serious business transaction and a good faith sale and purchase of the farm.

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In the field of contracts, as generally elsewhere, “We must look to the outward expression of a person as manifesting his intention rather than to his secret and unexpressed intention. 'The law imputes to a person an intention corresponding to the reasonable meaning of his words and acts.’”   First Nat. Bank v. Roanoke Oil Co., 169 Va. 99, 114, 192 S.E. 764, 770.

At no time prior to the execution of the contract had Zehmer indicated to Lucy by word or act that he was not in earnest about selling the farm. They had argued about it and discussed its terms, as Zehmer admitted, for a long time. Lucy testified that if there was any jesting it was about paying $50,000 that night. The contract and the evidence show that he was not expected to pay the money that night. Zehmer said that after the writing was signed he laid it down on the counter in front of Lucy. Lucy said Zehmer handed it to him. In any event there had been what appeared to be a good faith offer and a good faith acceptance, followed by the execution and apparent delivery of a written contract. Both said that Lucy put the writing in his pocket and then offered Zehmer $5 to seal the bargain. Not until then, even under the defendants' evidence, was anything said or done to indicate that the matter was a joke. Both of the Zehmers testified that when Zehmer asked his wife to sign he whispered that it was a joke so Lucy wouldn't hear and that it was not intended that he should hear.

The mental assent of the parties is not requisite for the formation of a contract. If the words or other acts of one of the parties have but one reasonable meaning, his undisclosed intention is immaterial except when an unreasonable meaning which he attaches to his manifestations is known to the other party. RESTATEMENT OF THE LAW OF CONTRACTS, Vol. I, § 71, p. 74.

“* * * The law, therefore, judges of an agreement between two persons exclusively from those expressions of their intentions which are communicated between them. * * *.” CLARK ON CONTRACTS, 4 ed., § 3, p. 4.

An agreement or mutual assent is of course essential to a valid contract but the law imputes to a person an intention corresponding to the reasonable meaning of his words and acts. If his words and acts, judged by a reasonable standard, manifest an intention to agree, it is immaterial what may be the real but unexpressed state of his mind. 17 C.J.S., Contracts, § 32, p. 361; 12 AM. JUR., Contracts, § 19, p. 515.

So a person cannot set up that he was merely jesting when his conduct and words would warrant a reasonable person in believing that he intended a real agreement, 17 C.J.S., Contracts, § 47, p. 390; CLARK ON CONTRACTS, 4 ed., § 27, at p. 54.

Whether the writing signed by the defendants and now sought to be enforced by the complainants was the result of a serious offer by Lucy and a serious acceptance by the defendants, or was a serious offer by Lucy and an acceptance in secret jest by the defendants, in either event it constituted a binding contract of sale between the parties.

Defendants contend further, however, that even though a contract was made, equity should decline to enforce it under the circumstances. These circumstances have been set forth in detail above. They disclose some drinking by the two parties but not to an extent that they were unable to understand fully what they were doing. There was no fraud, no misrepresentation, no sharp practice and no dealing between unequal parties. The farm had been bought for $11,000 and was assessed for taxation at $6,300. The purchase price was $50,000. Zehmer admitted that it was a good price. There is in fact present in this case none of the grounds usually urged against specific performance.

Specific performance, it is true, is not a matter of absolute or arbitrary right, but is addressed to the reasonable and sound discretion of the court.   First Nat. Bank v. Roanoke Oil Co., supra, 169 Va. at p. 116, 192 S.E. at p. 771.   But it is likewise true that the discretion which may be exercised is not an arbitrary or capricious one, but one which is controlled by the established doctrines and settled

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principles of equity; and, generally, where a contract is in its nature and circumstances unobjectionable, it is as much a matter of course for courts of equity to decree a specific performance of it as it is for a court of law to give damages for a breach of it.   Bond v. Crawford, 193 Va. 437, 444, 69 S.E.(2d) 470, 475.

The complainants are entitled to have specific performance of the contracts sued on. The decree appealed from is therefore reversed and the cause is remanded for the entry of a proper decree requiring the defendants to perform the contract in accordance with the prayer of the bill.

Reversed and remanded.

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SUPREME COURT OF MICHIGAN

Jacob F. KELLERv.

Jacob HOLDERMAN

Submitted on briefs April 17, 1863

Decided May 12, 1863

A. drew his check on a banker, with whom he had no deposit, for $300, in favor of B., who in return gave him his silver watch, worth $15. The court found that the transaction was a frolic, and banter, no purchase and sale being intended, though A. kept the watch until the trial of the suit of B. against him on his check, and then offered to return it. Held, that no contract was ever made.

Error to Berrien Circuit.

Action by Holderman against Keller upon a check for $300, drawn by Keller upon a banker at Niles, and not honored. The cause was tried without a jury, and the Circuit Judge found as facts, that the check was given for an old silver watch, worth about $15, which Keller took and kept till the day of trial, when he offered to return it to the plaintiff, who refused to receive it. The whole transaction was a frolic and banter--the plaintiff not expecting to sell, nor the defendant intending to buy the watch at the sum for which the check was drawn. The defendant when he drew the check had no money in the banker's hands, and had intended to insert a condition in the check that would prevent his being liable upon it; but as he had failed to do so, and had retained the watch, the judge held him liable, and judgment was rendered against him for the amount of the check.

W. A. Moore, for plaintiff in error.

James Brown, for defendant in error.

MARTIN CH. J.:

When the court below found as a fact that “the whole transaction between the parties was a frolic and a banter, the plaintiff not expecting to sell, nor the defendant intending to buy the watch at the sum for which the check was drawn,” the conclusion should have been that no contract was ever made by the parties, and the finding should have been that no cause of action existed upon the check to the plaintiff.

The judgment is reversed, with costs of this court and of the court below.

The other justices concurred.

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SUPREME JUDICIAL COURT OF MAINE

OWENv.

TUNISON

Feb. 8, 1932

Report from Superior Court, Piscataquis County.

Action by W. H. Owen against R. G. Tunison. On report.

Judgment for defendant.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, FARRINGTON, and THAXTER, JJ.McLean, Fogg & Southard, of Augusta, for plaintiff.

C. W. & H. M. Hayes, of Dover-Foxcroft, and Fellows & Fellows, of Bangor, for defendant.

BARNES, J.

This case is reported to the law court, and such judgment is to be rendered as the law and the admissible evidence require.

Plaintiff charges that defendant agreed in writing to sell him the Bradley block and lot, situated in Bucksport, for a stated price in cash, that he later refused to perfect the sale, and that plaintiff, always willing and ready to pay the price, has suffered loss on account of defendant's unjust refusal to sell, and claims damages.

From the record it appears that defendant, a resident of Newark, N. J., was, in the fall of 1929, the owner of the Bradley block and lot.

With the purpose of purchasing, on October 23, 1929, plaintiff wrote the following letter:

“Dear Mr. Tunison:

Will you sell me your store property which is located on Main St. in Bucksport, Me. running from Montgomery's Drug Store on one corner to a Grocery Store on the other, for the sum of $6,000.00?”

Nothing more of this letter need be quoted.

On December 5, following, plaintiff received defendant's reply, apparently written in Cannes, France, on November 12, and it reads:

“In reply to your letter of Oct. 23rd which has been forwarded to me in which you inquire about the Bradley Block, Bucksport Me.

Because of improvements which have been added and an expenditure of several thousand dollars it would not be possible for me to sell it unless I was to receive $16,000.00 cash.

The upper floors have been converted into apartments with baths and the b'l'dg put into first class condition.

Very truly yours,

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[Signed] R. G. Tunison.”

Whereupon, and at once, plaintiff sent to defendant, and the latter received, in France, the following message:

“Accept your offer for Bradley block Bucksport Terms sixteen thousand cash send deed to Eastern Trust and Banking Co Bangor Maine Please acknowledge.”

Four days later he was notified that defendant did not wish to sell the property, and on the 14th day of January following brought suit for his damages.

Granted that damages may be due a willing buyer if the owner refuses to tender a deed of real estate, after the latter has made an offer in writing to sell to the former, and such offer has been so accepted, it remains for us to point out that defendant here is not shown to have written to plaintiff an offer to sell.

There can have been no contract for the sale of the property desired, no meeting of the minds of the owner and prospective purchaser, unless there was an offer or proposal of sale. It cannot be successfully argued that defendant made any offer or proposal of sale.

In a recent case the words, “Would not consider less than half” is held “not to be taken as an outright offer to sell for one-half.” Sellers v. Warren, 116 Me. 350, 102 A. 40, 41.

Where an owner of millet seed wrote, “I want $2.25 per cwt. for this seed f. o. b. Lowell,” in an action for damages for alleged breach of contract to sell at the figure quoted above, the court held: “He [defendant] does not say, ‘I offer to sell to you.’ The language used is general, and such as may be used in an advertisement, or circular addressed generally to those engaged in the seed business, and is not an offer by which he may be bound, if accepted, by any or all of the persons addressed.” Nebraska Seed Co. v. Harsh, 98 Neb. 89, 152 N. W. 310, 311, and cases cited in note L. R. A. 1915F, 824.

Defendant's letter of December 5 in response to an offer of $6,000 for his property may have been written with the intent to open negotiations that might lead to a sale. It was not a proposal to sell.

Judgment for defendant.

38

COURT OF APPEALS OF KENTUCKY

FAIRMOUNT GLASS WORKSv.

CRUNDEN-MARTIN WOODENWARE CO.7

May 24, 1899

Appeal from circuit court, Jefferson county, law and equity division.

“To be officially reported.”

Action by the Crunden-Martin Woodenware Company against the Fairmount Glass Works to recover damages for breach of contract. Judgment for plaintiff, and defendant appeals. Affirmed.

W. W. Thum and Humphrey & Davie, for appellant. O. A. Wehle and A. M. Rutledge, for appellee.

HOBSON, J.

On April 20, 1895, appellee wrote appellant the following letter:

“St. Louis, Mo., April 20, 1895. Gentlemen: Please advise us the lowest price you can make us on our order for ten car loads of Mason green jars, complete, with caps, packed one dozen in a case, either delivered here, or f. o. b. cars your place, as you prefer. State terms and cash discount. Very truly, Crunden-Martin W. W. Co.”

To this letter appellant answered as follows:

“Fairmount, Ind., April 23, 1895. Crunden-Martin Wooden Ware Co., St. Louis, Mo.- Gentlemen: Replying to your favor of April 20, we quote you Mason fruit jars, complete, in one-dozen boxes, delivered in East St. Louis, Ill.: Pints $4.50, quarts $5.00, half gallons $6.50, per gross, for immediate acceptance, and shipment not later than May 15, 1895; sixty days' acceptance, or 2 off, cash in ten days. Yours, truly, Fairmount Glass Works.

“Please note that we make all quotations and contracts subject to the contingencies of agencies or transportation, delays or accidents beyond our control.”

For reply thereto, appellee sent the following telegram on April 24, 1895:

“Fairmount Glass Works, Fairmount, Ind.: Your letter twenty-third received. Enter order ten car loads as per your quotation. Specifications mailed. Crunden-Martin W. W. Co.”

In response to this telegram, appellant sent the following:

“Fairmount, Ind., April 24, 1895. Crunden-Martin W. W. Co., St. Louis, Mo.: Impossible to book your order. Output all sold. See letter. Fairmount Glass Works.”

Appellee insists that, by its telegram sent in answer to the letter of April 23d, the contract was closed for the purchase of 10 car loads of Mason fruit jars. Appellant insists that the contract 7 Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

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was not closed by this telegram, and that it had the right to decline to fill the order at the time it sent its telegram of April 24. This is the chief question in the case. The court below gave judgment in favor of appellee, and appellant has appealed, earnestly insisting that the judgment is erroneous.

We are referred to a number of authorities holding that a quotation of prices is not an offer to sell, in the sense that a completed contract will arise out of the giving of an order for merchandise in accordance with the proposed terms. There are a number of cases holding that the transaction is not completed until the order so made is accepted. 7 AM. & ENG. ENC. LAW (2d Ed.) p. 138; Smith v. Gowdy, 8 Allen, 566; Beaupre v. Telegraph Co., 21 Minn. 155. But each case must turn largely upon the language there used. In this case we think there was more than a quotation of prices, although appellant's letter uses the word “quote” in stating the prices given. The true meaning of the correspondence must be determined by reading it as a whole.

Appellee's letter of April 20th, which began the transaction, did not ask for a quotation of prices. It reads: “Please advise us the lowest price you can make us on our order for ten car loads of Mason green jars. *** State terms and cash discount.” From this appellant could not fail to understand that appellee wanted to know at what price it would sell it ten car loads of these jars; so when, in answer, it wrote: “We quote you Mason fruit jars *** pints $4.50, quarts $5.00, half gallons $6.50, per gross, for immediate acceptance; *** 2 off, cash in ten days,”- it must be deemed as intending to give appellee the information it had asked for. We can hardly understand what was meant by the words “for immediate acceptance,” unless the latter was intended as a proposition to sell at these prices if accepted immediately.

In construing every contract, the aim of the court is to arrive at the intention of the parties. In none of the cases to which we have been referred on behalf of appellant was there on the face of the correspondence any such expression of intention to make an offer to sell on the terms indicated. In Fitzhugh v. Jones, 6 Munf. 83, the use of the expression that the buyer should reply as soon as possible, in case he was disposed to accede to the terms offered, was held sufficient to show that there was a definite proposition, which was closed by the buyer's acceptance. The expression in appellant's letter, “for immediate acceptance,” taken in connection with appellee's letter, in effect, at what price it would sell it the goods, is, it seems to us, much stronger evidence of a present offer, which, when accepted immediately, closed the contract. Appellee's letter was plainly an inquiry for the price and terms on which appellant would sell it the goods, and appellant's answer to it was not a quotation of prices, but a definite offer to sell on the terms indicated, and could not be withdrawn after the terms had been accepted.

It will be observed that the telegram of acceptance refers to the specifications mailed. These specifications were contained in the following letter:

“St. Louis, Mo., April 24, 1895. Fairmount Glass-Works Co., Fairmount, Ind.-Gentlemen: We received your letter of 23rd this morning, and telegraphed you in reply as follows: ‘Your letter 23rd received. Enter order ten car loads as per your quotation. Specifications mailed,’-which we now confirm. We have accordingly entered this contract on our books for the ten cars Mason green jars, complete, with caps and rubbers, one dozen in case, delivered to us in East St. Louis at $4.50 per gross for pint, $5.00 for quart, $6.50 for one-half gallon. Terms, 60 days' acceptance, or 2 per cent. for cash in ten days, to be shipped not later than May 15, 1895. The jars and caps to be strictly first-quality goods. You may ship the first car to us here

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assorted: Five gross pint, fifty-five gross quart, forty gross one-half gallon. Specifications for the remaining 9 cars we will send later. Crunden-Martin W. W. Co.”

It is insisted for appellant that this was not an acceptance of the offer as made; that the stipulation, “The jars and caps to be strictly first-quality goods,” was not in their offer; and that, it not having been accepted as made, appellant is not bound. But it will be observed that appellant declined to furnish the goods before it got this letter, and in the correspondence with appellee it nowhere complained of these words as an addition to the contract. Quite a number of other letters passed, in which the refusal to deliver the goods was placed on other grounds, none of which have been sustained by the evidence. Appellee offers proof tending to show that these words, in the trade in which parties were engaged, conveyed the same meaning as the words used in appellant's letter, and were only a different form of expressing the same idea. Appellant's conduct would seem to confirm this evidence.

Appellant also insists that the contract was indefinite, because the quantity of each size of the jars was not fixed, that 10 car loads is too indefinite a specification of the quantity sold, and that appellee had no right to accept the goods to be delivered on different days. The proof shows that “10 car loads” is an expression used in the trade as equivalent to 1,000 gross, 100 gross being regarded a car load. The offer to sell the different sizes at different prices gave the purchaser the right to name the quantity of each size, and, the offer being to ship not later than May 15th, the buyer had the right to fix the time of delivery at any time before that. Sousely v. Burns' Adm'r, 10 Bush, 87; Williamson's Heirs v. Johnston's Heirs, 4 T. B. Mon. 253; Wheeler v. Railroad Co., 115 U. S. 34, 5 Sup. Ct. 1061, 1160. The petition, if defective, was cured by the judgment, which is fully sustained by the evidence.

Judgment affirmed.

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COURT OF CIVIL APPEALS OF TEXAS, DALLAS

COPLEYv.

WILLS

Jan. 11, 1913

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Action by Paul Wills against E. W. Copley. Judgment for plaintiff. Defendant appeals. Affirmed.

J. D. Fouraker and Meador & Davis, all of Dallas, for appellant.

H. G. Wills and E. G. Senter, both of Dallas, for appellee.

RASBURY, J.

Appellee, Paul Wills, by next friend, sued appellant, E. W. Copley, in the district court of Dallas county for damages for personal injuries alleged to have been inflicted by the bite of a monkey while appellee was a patron of a combination motion picture theater and museum conducted by appellant in the city of Dallas, Tex., and at trial before the court recovered judgment. He alleged that while in appellant's place of entertainment he exercised ordinary care for his own safety in viewing the menagerie, but that appellant was negligent, in that he caused and permitted a vicious and irritable monkey belonging to his museum to be and run at large and without restraint therein among large numbers of people, and in that he failed to warn appellee, the minor, that said monkey was dangerous and irritable, and likely to attack appellee if he got in close proximity to the animal. Appellant pleaded the general denial.

In deference to the judgment of the court, we find as facts that appellant did conduct a motion picture theater and museum in the city of Dallas, the museum containing, among other things, the monkey, which attacked appellee; that appellant permitted the monkey to run at large and without restraint within the museum; that on the day alleged appellee, a minor, 13 years of age, was in attendance upon the museum, having paid the price of admission demanded by appellant; that on said day the monkey was at large without restraint in the museum; that the appellee encountered the monkey, and began feeding him peanuts as he saw other patrons doing; that he gave the animal a “couple” of peanuts which the monkey accepted with no resultant trouble; that he presented the animal with a third peanut which he accepted, but dropped it to the floor; that appellee stooped to pick the peanut from the floor when the animal ran at him and bit him upon the calf of the leg, and then ran away; that the appellee's mother, Mrs. Dunway, who was not present at the time, had prior to the injury forbidden appellee attending the museum on account of the fact that the animals were permitted to run at large, and she feared that appellee would be bitten by some of them.

The only error assigned by appellant is that the judgment for appellee is improper because the testimony shows that at the time appellee was injured he was teasing or playing with the monkey, notwithstanding his mother had warned him to stay away from the museum, and was hence guilty of contributory negligence. The appellee, as we have said, was 13 years of age at the time of his alleged injury. In passing upon the defense of contributory negligence in its

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application to minors, our Supreme Court in Railway Co. v. Shiflet, 94 Tex. 131, 58 S. W. 945, cited by counsel for appellant, say: “This does not bring him within the age at which courts have held a child to be exempt as a matter of law from the charge of contributory negligence, neither does it place him at such age as the court will as a matter of law hold that he was responsible for his acts.” Thus the charge of contributory negligence in this case became wholly a question of fact for solution by the trial court in the absence of a jury, and, the trial court having resolved that issue in favor of appellee, it must stand.

Without reference, however, to the minority of appellee and the consequent variation of the ordinary rule of contributory negligence, we are of opinion that the rule is not applicable in this case in any event, for the reason that monkeys are animals feræ naturæ or of a wild nature or disposition, and a different rule of liability obtains in case of injuries inflicted by such animals. One authority states the rule to be that:

“While it is not in itself unlawful for a person to keep wild beasts, though they may be such as are of a nature fierce, dangerous, and irreclaimable, yet it is the duty of those who own or keep them to do it in such manner as will absolutely prevent the occurrence of an injury to others through such vicious acts of the animals as they are naturally inclined to commit. For any injury they may do to others the person keeping them is liable without any particular notice that they did any such things before; such notice being conclusively presumed from the nature of the animal.” 2 CYC. 368.

Bearing upon the question of defenses that are available in such cases, another authority says: “If a person with full knowledge of the evil propensities of an animal wantonly excites

him, or voluntarily and unnecessarily puts himself in the way of such an animal, he would be adjudged to have brought the injury upon himself, and ought not to be entitled to recover. *** But, as the owner is held to a rigorous rule of liability on account of the danger to human life and limb by harboring and keeping such animals, it follows that he ought not to be relieved from it by slight negligence or want of ordinary care. To enable an owner of such an animal to interpose this defense, acts should be proved with notice of the character of the animal which would establish that the person injured voluntarily brought the calamity upon himself.”   Muller v. McKesson, 73 N. Y. 195, 29 Am. Rep. 123. See, also, Vredenburg v. Behan, 33 La. Ann. 627; Decker v. Gammon, 44 Me. 322, 69 Am. Dec. 99.

These cases in our opinion establish the correct rule and have our indorsement. Under them, can it be said that appellee was in any proper sense voluntarily responsible for the attack which injured him? We think it clear that he was not. He was in appellant's place of amusement at his invitation as a patron, and had the right to presume protection from the animals contained in the museum. Appellant permitted the monkey to run at large therein, and to that extent represented to his patrons that the animal was harmless. It was the custom of his patrons to feed the monkey with the permission of appellant, and he permitted appellee to engage in that pastime without warning. The very act which precipitated the attack was a natural thing to do, and an act not calculated to excite or arouse the ire or evil propensities of the animal, and but emphasizes the reason and necessity of the rule that requires such animals to be so kept as to absolutely prevent such occurrences.

In our opinion no error was committed upon trial of the case, and it becomes our duty to affirm the judgment.

Affirmed.

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SUPREME COURT, APPELLATE TERM, NEW YORK,FIRST DEPARTMENT

STAMPv.

EIGHTY-SIXTH STREET AMUSEMENT CO.

June, 8, 1916

Appeal from Municipal Court, Borough of Manhattan, Sixth District.

Action by Emil Stamp against the Eighty-Sixth Street Amusement Company. From a judgment of the Municipal Court for defendant, plaintiff appeals. Reversed, and new trial ordered.

Henry G. Wenzel, Jr., of Brooklyn, for appellant.

William Butler, of New York City (R. Waldo MacKewan, of New York City, of counsel), for respondent.

Argued March term, 1916, before LEHMAN, PENDLETON, and WHITAKER, JJ.

LEHMAN, J.

It appears undisputed that on December 17, 1914, the plaintiff's wife was a spectator at a vaudeville performance in the defendant's theater and had paid an admission fee to see the performance. Among the acts on the program was a performance by trained lions. These lions did not belong to the defendant, and the defendant did not have direct charge of the lions. The defendant merely engaged the owner of the lions to give this part of the performance. After the lions had performed before the public, and another act was in progress, three of the lions escaped from their cages and entered the orchestra. When the audience saw the lions, they attempted to escape in panic, and in the resultant rush the plaintiff's wife was injured. Upon these facts the learned trial justice dismissed the complaint, on the ground that the defendant was not the owner of the lions, did not have charge of them, and was guilty of no negligence.

It is well established that the owner of a vicious animal is liable for any injury done by such animal. ‘The gravamen of the action, in such cases, is the keeping of the animal with knowledge of its propensities, and, if it does some mischief, negligence is not, strictly speaking, an element of the owner's liability. There is, perhaps, a presumption juris et de jure of negligence, based upon the keeping, and in that sense only an action would rest upon negligence. Card v. Case, 5 C. B. Rep. 622. The liability of an owner is absolute, and he is bound to keep the animal secure, or he must suffer the penalty for his failure to do so, in making compensation for the mischief done.’ See Molloy v. Starin, 191 N. Y. 21, 83 N. E. 588, 16 L. R. A. (N. S.) 445, 14 Ann. Cas. 57, and cases there cited. There is no doubt that a lion is a wild animal, presumed to be vicious, and everyone is presumed to have knowledge of its vicious propensities. There can, therefore, be no doubt that the owner of the lions which escaped would be liable for any injuries directly caused by the lion. The trial justice has, however, held that this liability does not extend to the owner of the theater, who did not own the lions nor care for them.

It has been frequently held that one who harbors a vicious animal is subject to the same liability as the owner of the animal, but in practically all the cases where this rule has been

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announced the person who ‘harbored’ the animal took direct charge and control of the animal. Inasmuch, however, as the gravamen of the action is the ‘keeping’ of the animal with knowledge of its propensities, I think any third person shares in the owner's liability if by his acts he actually ‘keeps' the vicious animal himself, or if he takes part in the owner's keeping of it. To quote again from the case of Molloy v. Starin, supra:

‘This rule of liability * * * is predicated upon the wrongful and unjustifiable conduct of the owner in keeping an animal of a vicious and therefore dangerous nature. If it is not securely confined, it is plainly a public nuisance, and security must be assured under all circumstances.’

Applying these rules to the case before us, I think it is evident that the keeping of the lions insecurely confined constituted a public nuisance. The defendant was responsible in the first instance for the keeping of the animals on its premises. It had itself procured the act, and invited the public to the theater to see it, and unless security was assured it took part in the maintenance of a public nuisance. Just as the owner could not under these circumstances relieve himself of liability by proof of due care in the securing of the animals, so the defendant cannot relieve itself of liability by showing that a third party owned and had the actual physical care of the animals. The defendant's wrong consists in the bringing and keeping of vicious animals on its premises. The manner in which they were kept there is immaterial, since the event shows that they were not securely confined.

The learned trial justice, however, relied on the same case of Molloy v. Starin, supra, from which I have quoted, as authority for the view that the defendant in this case is not responsible, in the absence of negligence, for injuries suffered by the plaintiff's wife. In that case it is true that the Court of Appeals by a divided court held that a common carrier which transported wild animals was not responsible, in the absence of negligence, for injuries caused by the animals. The decision in that case seems to be based on its own peculiar facts. The carrier had a lawful right, even if it was not legally bound, to transport wild animals in secure cages. In performing its functions as a common carrier it cannot be said to be ‘keeping’ the wild animals in any fair sense, and it would be against public policy to extend the rule of liability to cover a case not within its reason. In this case, however, the defendant took upon itself the responsibility of bringing the wild animals on its own premises for its own purposes, and then inviting the general public to visit the premises. The defendant is therefore within the letter and spirit of the rule which fixes upon one who harbors a wild animal an absolute liability for injuries suffered as a direct result of his own acts.

It is also urged that, since the plaintiff's wife was injured by the panic-stricken crowd and not by the lions directly, the injuries were not in a legal sense caused by the lions. The panic of the crowd was, however, directly caused by the natural fear of an unsecured vicious animal, and was a result which might well have been foreseen by the defendant.

It follows that the judgment should be reversed, and a new trial ordered, with $30 costs to appellant to abide the event.   All concur.

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SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT, NEW YORK

GUZZIv.

NEW YORK ZOOLOGICAL SOC.

May 28, 1920

Appeal from Trial Term, New York County.

Action by Blanche Guzzi, an infant, etc., against the New York Zoological Society. From a judgment dismissing the complaint at the close of evidence, and from the order on which the judgment was entered, plaintiff appeals. Judgment and order affirmed.

Joseph R. Truesdale, of New York City, for appellant.

Alfred W. Andrews, of New York City (James B. Henney, of New York City, of counsel), for respondent.

Argued before CLARKE, P. J., and LAUGHLIN, SMITH, PAGE, and MERRELL, JJ.

MERRELL, J.

This action is brought to recover for personal injuries sustained by the plaintiff at the so-called Bronx Zoo, where there were on exhibition various wild animals.

The plaintiff, a bright, intelligent girl of the age of 12 years and 10 months, on November 17, 1917, in company with two other girls of about her own age and some younger children, went from her home two or three blocks distant to the Bronx Park Zoological Park to play. Between 4 and 5 o'clock in the afternoon the plaintiff, with her two companions of about the same age, were engaged in playing ball on a platform near the bear cage. The plaintiff stood nearest the cage, and her companions some distance away; the three girls forming a triangle. As the ball was tossed to the plaintiff, it passed her, rolled across the concrete sidewalk in front of the bear cage, underneath the fence, and from thence under the cage itself. The cage proper consisted of iron bars set in concrete, and the floor, according to the testimony, was elevated a foot or 14 inches above the ground. Outside of the cage proper, and 3 feet distant therefrom, there was erected a fence, consisting of iron bars and uprights, to keep the public away from the cage.

When the ball rolled underneath, the plaintiff voluntarily, without any request on the part of anybody, started to retrieve it. She first crawled through the fence, and then, lying prone on the ground in front of the bear's cage, with her head and hair, which was down, resting against the bars, she reached under the cage with her arm for the purpose of getting the ball. She testified that she knew at the time she climbed through the fence and went up to the bars, if the bear could reach her, and she got close enough to him so that he could reach her, that he would hurt her. She further testified that she did not look to see where the bear was, or to see how far apart the bars were. She testified that she understood the vicious nature of the animal, and that if the bear could reach her it would hurt her. She also testified that she took no notice of where the bear was at the time she went through the fence and reached for the ball.

As her head, with her hair, was against the bottom part of the cage, the bear reached through, caught her by the hair, and severely tore her scalp, causing serious and permanent injuries, to recover for which she brought the present action.

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The plaintiff testified that she never before had seen anybody inside the fence, and that she had been forbidden by her parents to go near the animals. The plaintiff, at the time of the accident, was a pupil in school, doing grade 7–A and 7–B work, and had studied about animals in the science class.

The complaint does not allege that plaintiff's injuries were sustained through any neglect on the part of the defendant, or by reason of any failure in the performance of any duty on defendant's part. The plaintiff contended upon the trial, and urges upon this appeal, that the fact that the bear was ferae naturae and was kept by the defendant in its zoological garden at Bronx Park, and that the plaintiff received injury from said animal, constituted plaintiff's cause of action; that defendant's liability was absolute. The theory of the plaintiff, as stated by counsel upon the argument, was that the keeping of the bear which injured plaintiff constituted a nuisance. Counsel for the plaintiff expressly disavowed any claim that defendant had been guilty of any act of negligence. No such act or failure of duty in any respect is alleged in the complaint, nor was it attempted to be proved upon the trial.

We are unable to see any legal basis for plaintiff's claim that the keeping of the bear under the circumstances constituted a nuisance. The New York Zoological Society is chartered by the Legislature, and maintains in Bronx Park for educational and entertainment purposes a display of wild animals. The animals are safely confined in cages, and suitable fences for keeping the public away from the cages have been erected. The defendant is there conducting this exhibit under legislative authority, and it cannot possibly be guilty of maintaining a nuisance under the circumstances.

Upon the trial the learned court dismissed the complaint at the conclusion of the plaintiff's case, upon the ground that the plaintiff, by her evidence, had established no cause of action against the defendant. I think the ruling of the court was correct.

The plaintiff appellant relies upon a number of well-settled cases as authority for the right of recovery of a person injured by vicious animals or animals ferae naturae harbored or kept by individuals. In none of the cases, so far as I am able to discover, were the precise facts presented that are involved in the case at bar. In all of plaintiff's cases the animals, either vicious dogs or wild animals ferae naturae, were kept by the defendant as a private enterprise. In many of the cases wild animals were kept for exhibition purposes, the public being charged admission to view them, and the enterprise was conducted for profit by the defendant. In other cases, such as Ervin v. Woodruff, 119 App. Div. 603, 103 N. Y. Supp. 1051, the animal was kept by the defendant as a whim or for his own personal interest. I think a different situation arises than in the case at bar, where the animals were maintained as a public enterprise under legislative authority for educational purposes and to entertain the public

While we do not base our affirmance of the judgment appealed from upon the ground of plaintiff's contributory negligence, the evidence shows that the plaintiff unnecessarily and voluntarily, with full knowledge of the danger to her, placed herself in position where the bear was able to reach her. The plaintiff admits that she knew that if she put herself within reach of the bear she would be hurt. She was an intelligent child, nearly 13 years of age, well advanced in her studies, and the fact, if it be a fact, that she inadvertently forgot the presence of the bear within the cage would absolve the defendant from liability for the injuries which she sustained as the direct result of her imprudence.  The cases seem to be unanimous that no recovery can be had where the injured party unnecessarily and voluntarily puts herself in the way to be hurt, knowing the probable consequences of her act.     Muller v. McKesson, 73 N. Y. 195, 29 Am. Rep. 123; Lynch v. McNally, 73 N. Y. 347; Molloy v. Starin, 191 N. Y. 21, 83 N. E. 588, 16 L. R. A. (N. S.) 445, 14 Ann. Cas. 57; Ervin v. Woodruff, 119 App. Div. 603, 103 N. Y. Supp. 1051. In the case last cited, Lieutenant

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Governor Woodruff maintained at his Adirondack camp a bear, which was chained upon the lawn or grounds near his cottage. The plaintiff knew and understood that, if he went within reach of the bear, he would be likely to be attacked. On the occasion of his injury he did go within reach of the bear unnecessarily and voluntarily, as the result of which the bear attacked him and he received the injuries for which he sought to recover. It was held that under the circumstances no recovery could be had.

But, so far as a determination of this appeal is concerned, it is unnecessary for us to hold that as matter of law the plaintiff was guilty of such contributory negligence as would bar a recovery for her injuries. Plaintiff is not seeking a recovery by reason of any negligence on the part of the defendant, but solely because defendant kept a ferocious animal that injured her; that in keeping the bear defendant maintained a nuisance, and is answerable for plaintiff's injuries. We hold that plaintiff cannot maintain her action upon any such theory. The defendant had a legal right to keep the animal, and, in the absence of allegation and proof of some act of negligence or failure of duty on its part, the defendant cannot be held liable to respond to plaintiff in damages.

The complaint was properly dismissed, and the judgment and order appealed from should be affirmed, with costs. All concur.

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SUPREME COURT OF SOUTH DAKOTA

HEIDEMANNv.

WHEATON et al.

No. 8930

Nov. 16, 1948

Appeal from Circuit Court, Pennington County; Walter Seacat, Judge.

Action by Mary Jane Heidemann against Hal D. Wheaton and Tina Wheaton for personal injuries inflicted by caged black bears owned by defendants. From the judgment, defendants appeal.

Judgment reversed with directions.

John C. Farrar, of Rapid City, for defendants and appellants.

Bottum & Bottum, of Rapid City, for plaintiff and respondent.

HAYES, Judge.

On a Sunday afternoon plaintiff, Mrs. Heidemann, went to see two black bears in a cage. While viewing the bears she placed herself within such proximity to the cage and bears that her chosen position proved to be dangerous and harmful. One of the bears reached through the bars of the cage and struck her down. She sued for the injuries suffered, and a jury awarded a substantial recovery. The appeal of defendants from the ensuing judgment and rulings of the trial court brings before us a number of intriguing problems. We turn first, however, to the contention of appellants that the trial court erred in refusing to grant the motion of their counsel for a directed verdict favorable to both of the Wheatons. We believe that such motion was properly put and should have been granted. The same called to the attention of the court the specific question respecting the legal effect of respondent's conduct, the answer thereto to us clearly appearing as a preclusion against recovery for the bear's misbehavior.

Additional facts deemed essential to this opinion may be briefly stated. The cage in which the bears were confined rested upon land owned by Mrs. Wheaton. It was constructed of materials altogether sufficient to keep the animals within the caged area. The bears were cubs each weighing about 100 pounds and could stand to a head height of about 5 feet. They were of the black bear species. Measurements of one of the bears include an inside fore-leg length of 19 inches. The bear which struck Mrs. Heidemann assumed a standing position and faced her at or near the bars of the cage just prior to the time when it inflicted the injuries for which recovery was allowed. Views differed regarding the possible reach of a bear beyond or outside of the cage bars, but it is certain that a bear did reach out and strike respondent. Accordingly, we must accept it as a fact that the victim of the bear's attack voluntarily placed herself within the danger zone and assumed the risk of being injured. The record allows no other factual deduction regarding respondent's action.

Respondent argues that it was for the jury to decide whether her actions or conduct had been such as to constitute contributory negligence. She relies upon the decision in Anderson v. Anderson, 41 S.D. 32, 168 N.W. 852, 853, and facts of the instant case which she asserts could lead reasonable men and women to differ regarding the question of propriety or impropriety on her part as she visited the bears. However, the briefs of counsel reflect an accord with respect to the law applying to those who visit caged animals known to be wild by nature and dangerous. Authorities directed to

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our attention sustain the rule tersely set forth in RESTATEMENT OF THE LAW, Torts, Vol. III, § 515(2). It is there stated that a plaintiff is barred from recovery by intentionally and unreasonably subjecting himself to the risk that a wild animal will do harm to his person. See also RESTATEMENT, Torts, Vol. II, § 484.

In support of her contention respondent asserts as follows: ‘The fact that the plaintiff misjudged the situation cannot constitute evidence that she ‘intentionally or unreasonably’ put herself within reach of the bear, as a matter of law.' Nothing in the record before us suggests that respondent did other than to voluntarily and intentionally move into and remain within an area which then was, and ultimately proved to be, wholly unsafe. Whether this action of respondent was an unreasonable subjecting of herself to the risk that the bear would do her bodily harm is a question not at all likely, as we see it, to provoke differing views in the minds of reasonable men and women. Minds of such persons could not hold it to be reasonable to move or stand within striking range of a caged animal commonly known to be responsive to vicious propensities. On the contrary, reasonable minds must agree that it is a violation of duty to one's self and not reasonable to take a chance with a black bear. When respondent voluntarily or carelessly stepped within reach of the bear she may have misjudged the situation as contended by her counsel. In any event, her judgment was erroneous. For such error in judgment and the injuries resulting directly therefrom respondent cannot impose legal responsibility upon the owner of the animal.

In the Anderson case, supra, a divided opinion of this court announced the application of the rule of absolute liability to the owner of a bull known to be vicious. The majority of the judges held that a person keeping a bull or other animal known to be of vicious tendencies is liable for such injuries as may be caused by such animal, regardless of the degree of care exercised by such owner in restraining and controlling such animal or the precautions taken by the owner of such animal to prevent its doing injury, and stated the qualification of such holding as follows: ‘If the injured party is guilty of negligence that contributed directly to the injury, such negligence would be a defense to the action.’ A careful reading of the opinion discloses that although it declares the rule of absolute liability to be supported by the weight of authority, the evidence tending to establish negligence on the part of the owner of the bull and contributory negligence on the part of decedent in handling the animal is reviewed and treated at length. Finally decided by said opinion was that it was for the jury to say whether decedent had been negligent in attempting to handle the bull unless it then had a ring in its nose by which its actions might have been controlled.

We think that the opinion of the court in Panorama Resort v. Nichols, 165 Va. 289, 182 S.E. 235, sets forth the views now to be regarded as deserving of our support. The thorough review therein of decisions and authorities bearing upon the question and the reasoning employed appear to us wholly sufficient to affirm the soundness of the conclusions announced in said opinion. But the facts of that case differ substantially from those in the one before us. The defendants in the Virginia case were operating a public resort and made it a practice to encourage guests to buy soft drinks, ice cream, etc., for the animals. The enclosure in which the bears were confined was constructed of wire and was loose and sprung in places. Thus the owners of the bears held forth to the public a condition of affairs which most naturally produced a justification on the part of guests of the premises for the belief that it was at least reasonably safe to stand close enough to the cage to hand food and drinks to the animals. The hole in the loose gate was without doubt the place through which soft drinks were handed to the bears or else the animals reached through the hole and took from the hands of guests items they had been invited to obtain at the resort and take to the animals.

In the case before us the Wheatons were not operating a resort. A plan previously considered by them to publicly display the bears and other attractions had been abandoned. The statements of counsel exclude from this case conduct on the part of the Wheatons tending to establish that they

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were attempting to operate a private zoo when Mrs. Heidemann was injured or that there was then an invitation to her or to the public to enter upon the premises and look at the bears. The Wheatons had put out a calendar for 1946 advertising a zoo but no zoo had been placed in operation as contemplated. It does not appear from counsels' statements of facts that Mrs. Heidemann had ever seen one of these calendars or had been informed thereof. The plain inference from such statements is that she knew nothing about the calendars but went to see the bears solely at the suggestion of a friend. We have then but a case where the injured party approached and stood near a cage constructed of steel bars, about six inches apart, through which the animals could readily strike out. But casual observation of the cage and bears would suggest an exercise of caution rather than carelessness in approaching the animals. We cannot adjust our thinking to the view that members of a jury, with due regard for the plain facts of the case, could fairly disagree in deciding the question whether or not Mrs. Heidemann had unreasonably exposed herself to a risk readily apparent to her. The proximate cause of the injury she suffered was her failure to exercise ordinary care in avoiding an obvious danger.

The judgment appealed from is reversed with directions to enter judgment in favor of the defendants.

All the Judges concur except ROBERTS, P. J., not sitting.

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SUPREME COURT OF APPEALS OF WEST VIRGINIA

VAUGHANv.

MILLER BROS. “101” RANCH WILD WEST SHOW

No. 6630

May 13, 1930

Syllabus by the Court.

Facts constituting negligence in restraint of wild animal by exhibitor must be alleged in action for injury caused thereby.

In an action against an exhibitor of a wild animal for injury caused thereby, facts constituting negligence in its restraint must be alleged.

Error to Circuit Court, Kanawha County.

Action by Martin Holton Vaughan, etc., against the Miller Bros. “101” Ranch Wild West Show. To review an order quashing affidavit for order of attachment, plaintiff brings error.

Affirmed.

John Copenhaver and Jo N. Kenna, both of Charleston, for plaintiff in error.

Philip H. Hill, of Charleston, for defendant in error.

HATCHER, J.

Certain property of the appellee was attached. The affidavit for the order of attachment was quashed. This writ of error involves the sufficiency of the affidavit.

The nature of the claim as alleged in the affidavit is as follows: “Heretofore, to-wit, on the 10th day of September, 1928, the said Marvin Holton Vaughan, accompanied by this affiant, attended the circus of the said Miller Brothers, ‘101’ Ranch Wild West Show, in the City of Charleston, Kanawha County, West Virginia, and while attending said circus, the index finger of the right hand of the said Marvin Holton Vaughan was bitten off at or near the second joint by a dangerous and vicious animal, to-wit, an Ape owned by the said Miller Brothers, ‘101’ Ranch Wild West Show, a corporation, while said animal was on exhibition in said circus, for the entertainment of the public.”

The plaintiff's demand in brief is this: He attended a circus, and a vicious ape on exhibition there bit off his finger. There is no allegation of negligence. The plaintiff takes the position that none is requisite; that the gravamen of the action is not in the negligent keeping of a vicious animal, but in keeping it at all. Much authority supports his position. See 1 STANDARD ENCY. OF PRO. 961 (3); 3 C. J. p. 112, § 356; 1 R. C. L. pp. 1086, 1087, § 29; KINKEAD'S COMM. ON TORTS, § 237; Annotation 97 AM. ST. REP. 287, 288. These as well as other American authorities are all based directly or indirectly upon English decisions. May v. Burdett, 9 Q. B. 101, 115 E. R. 1213, decided in 1846, is the leading English case. Lord Denman, in delivering the judgment of the court said: “The precedents, both ancient and modern, with scarcely an exception, merely state the ferocity of the animal and the knowledge of the defendant without any allegation of negligence or want of care. *** The conclusion to be drawn from an examination of all the authorities appears to us to be this: That a person keeping a mischievous animal with knowledge of its propensities is bound to keep it secure at his peril, and that, if it does mischief, negligence is presumed, without express averment.”

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Troubled because his position could not be reconciled with the maxim so deeply ingrained in English jurisprudence, “He who suffers a damage by his own fault, is not considered as suffering damage,” Lord Denman stated that, if the injury was occasioned solely by the willfulness of the plaintiff, it might be a defense; but on this he did not commit himself. Bramwell, J., in Nichols v. Marsland, L. R. 10 Ex. 255, attempting to bolster Lord Denman's position, said: “I am by no means sure that if a man kept a tiger, and lightning broke his chain, and he got loose and did mischief, that the man who kept him would not be liable.” In his enthusiasm, Judge Bramwell overlooked the probable mollifying effect of the lightning on the tiger as well as another maxim, “An act of God does injury to no one.”

Based on the pronouncement in May v. Burdett, judicial dicta followed that the owner of animals feræ naturæ “is an insurer for,” “is liable under all circumstances for,” and “is absolutely liable for” all injuries done by them.

The common law accorded to the owner of wild animals (in possession) practically the same property rights therein as in those domesticated. 3 MINOR, INST. p. 7. The keeping of a menagerie was not forbidden or deemed in any way blameworthy. Holmes, THE COMMON LAW, p. 155. See, also, article by Thomas Bevan, 22 H. L. R. pp. 465, 476. If, at common law, the ownership of wild animals was recognized and protected as lawful, how could judges consistently presume such ownership wrongful and negligent? An anomaly indeed! It is true that animals feræ naturæ constantly seek to escape confinement, and, if successful, become a menace to mankind. But the tiger, unrestrained, is no more dangerous than fire, water, electricity, or gas uncontrolled. The liability of the owner of these has never been declared absolute, nor his negligence presumed from mere ownership. Why discriminate against the owner of the animate menace? Barrows, in his work on Negligence, says that this discrimination “is not supported by reason or analogy.” See section 150. It is certainly not consistent with the fundamental principles underlying actions for torts. Before the law can redress an injury, “there must be an act which under the circumstances is wrongful.” BISHOP ON NON-CONTRACT LAW, § 22. For if the injury “is the result of a lawful act done in a lawful manner, without any carelessness or negligence, there may be no legal injury, and no tort giving rise to an action for damages.” ADDISON ON TORTS *19.

Despite the fallacy of May v. Burdett, the English courts have continued to render it lip service. Not a single adjudication, however, have I found against an owner, based solely on possession, in which arose the question of vis major or contributory negligence. And in Marlor v. Ball, 16 R. L. R. 239, ENG. REP. ANN. for the year 1900, p. 2585, it was held that the defendant who had zebras on exhibition was without negligence and not liable for the resultant injury to plaintiff, who had stroked a zebra. So by an English court do we find the English doctrine of absolute liability absolutely ignored.

Immediately following the decision in May v. Burdett, it became quite the vogue in the United States to proclaim (by way of dictum) its doctrine. But the principle of absolute liability has no more been enforced here than in England. The Supreme Court of Massachusetts, which in Popplewell v. Pierce, 10 Cush. 509, 511 (decided in 1852), had lent an attentive ear to May v. Burdett, in the later case of Bottcher v. Buck, 163 N. E. 182, limited the risk of exhibitors of wild animals to “keeping them so as not to injure invitees who are in exercise of due care.” In 1914 the Supreme Court of Connecticut in Bischoff v. Cheney, 89 Conn. 1, 4, 92 A. 660, 661, disclaimed the expressions in the earlier case of Woolf v. Chalker, 31 Conn. 121, 130, 81 Am. Dec. 175, which sanctioned the “harsh doctrine” that the owner of a vicious animal was an insurer against damages done by it, holding: “With us negligence is the foundation of an action of this character.” Absolute liability on the part of the keeper of a ferocious animal was advocated theoretically in 1862 by the New York court in Scribner v. Kelley, 38 Barb. 14. But in 1878 that theory was discarded in the

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case of one who with knowledge of an animal's ferocity unnecessarily assumed a position of danger. “In such a case it cannot be said, in a legal sense, that the keeping of the animal, which is the gravamen of the offense, produced the injury.” Muller v. McKesson, 73 N. Y. 195, 201, 29 Am. Rep. 123. A return to the earlier position by the Appellate Division in Molloy v. Starin, 113 App. Div. 852, 99 N. Y. S. 603, was reversed in the Court of Appeals in 191 N. Y. 21, 83 N. E. 588, 16 L. R. A. (N. S.) 445, 14 Ann. Cas. 57. The later case of Guzzi v. N. Y. Zoological Society, 192 App. Div. 263, 182 N. Y. S. 257, 260, decided in 1920, indicates a permanent rupture with May v. Burdett, saying: “The cases seem to be unanimous that no recovery can be had where the injured party unnecessarily and voluntarily puts herself in the way to be hurt, knowing the probable consequences of her act.” The federal court, in Congress & E. Spring Co. v. Edgar, 99 U. S. 645, 651, 25 L. Ed. 487, approved the rule of pleading advocated in the English case, but did not subscribe to the principle of absolute liability going only so far as to indicate that the exhibitor of a wild animal “is or may be liable for the injuries inflicted by it on a party who is not guilty of negligence, and is otherwise without fault.” Thus the shadow would be preserved without the substance. The Supreme Court of New Jersey never countenanced May v. Burdett, but disapproved it in Marshall v. Welwood, 38 N. J. Law, 339, 20 Am. Rep. 394, and De Gray v. Murray, 69 N. J. Law, 458, 55 A. 237.

In this country the right to exhibit wild animals is judicially recognized. “The conducting of shows for the exhibition of wild *** animals is a lawful business.” Bostock-Ferari Amusement Co. v. Brocksmith, 34 Ind. App. 566, 73 N. E. 281, 282, 107 Am. St. Rep. 260. Such exhibitions are licensed everywhere. Municipalities frequently maintain zoos for the benefit of the public. The idea is no longer indulged that it is prima facie negligent to keep or exhibit wild animals. COOLEY ON TORTS (3d Ed.) 706, 707. “Plainly the doctrine is otherwise now,” says BISHOP, supra, § 1230. Hence the gist of modern actions against exhibitors cannot be the mere keeping of savage animals, but must be neglect to restrain them. Hayes v. Smith, 62 Ohio St. 161, 182, 56 N. E. 879; Fake v. Addicks, 45 Minn. 37, 47 N. W. 450, 22 Am. St. Rep. 716; F. Pollock, 25 LAW T. REV. 317. “Latterly, however, there seems to be a disposition upon the part of the authorities to hold the more reasonable rule, that all that should be required of the keeper of such animals is that he should take that superior caution to prevent their doing mischief which their propensities in that direction justly demand of him.” 1 THOMPSON, COMM. Neg. § 841.

Hence, if a right of action in such case depends on neglect to restrain, negligence must be alleged. For failure of such allegation, the affidavit for attachment was properly quashed.

The ruling of the circuit court is affirmed.

Affirmed.

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