and hold that equity is not restricted to the protection of property rights. The tendency to enlarge the jurisdiction of Chancery in the direction of the protection of personal rights is steadily manifesting itself. Relatives of a dead man have been granted an injunction against the removal of his body, the court expressly stating that no property right was involved.49 The right has been recognized not to have private sketches 50 or non-literary letters 51

made public.

Sometimes the courts have based their decisions in these matters on a property right and sometimes on the ground of a breach of confidence. But "that they will forbid the breach of confidence committed in making public the letters or pictures means no more than that they recognize the right to keep them private, the real motive for their acting being to prevent the complainant from experiencing unpleasant notoriety; in the other instance, it is clear that they are not so much moving to protect any ownership in the ideas expressed as to defend the complainant from the public gaze.'

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The New Jersey court has emphatically said: "If it appeared in this case that only the complainant's status and personal rights were thus threatened or thus invaded by the action of the defendants and by the filing of the false certificate, we should hold, and without hesitation, that an individual has rights,

49 Pierce v. Proprietors of Swan Point Cemetery, 10 R. I. 227. 50 Prince Albert v. Strange, 1 Macn. & G. 25 (Eng.).

51 Woolsey v. Judd, 11 N. Y. Sup. Ct. 379; Gee v. Pritchard, 2 Swanst. 402 (Eng.); Baker v. Libbie, 210 Mass. 599, 97 N. E. 109.

52 21 Harvard Law Review, 54.

other than property rights, which he can enforce in a court of equity and which a court of equity will enforce against invasion, and we should declare that the complainant was entitled to relief."53

25. Same subject.-Justice Gray upholds the jurisdiction of a court of equity in privacy cases on the ground of a property right in the claimant. This property right he explains in the following words: "Property is not, necessarily, the thing itself which is owned; it is the right of the owner in relation to it. The right to be protected in one's possession of a thing or in one's privileges, belonging to him as an individual, or secured to him as a member of the commonwealth, is property, and as such entitled to the protection of the law. The protective power of equity is not exercised upon the tangible thing, but upon the right to enjoy it; and so it is called forth for the protection of the right to that which is one's exclusive possession, as a property right. I think this plaintiff has the same property in the right to be protected against the use of her face for defendants' commercial purposes as she would have if they were publishing her literary compositions. Any other principle of decision, in my opinion, is as repugnant to equity as it is shocking to reason.

* * *

* The right to grant the injunction does not depend upon the existence of property which one has in some contractual form. It depends upon the existence of property in any right which belongs to a person.

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53 Vanderbilt v. Mitchell, 72 N. J. Eq. 910, 927, 67 N. E. 103.

54 Roberson v. Rochester Folding Box Co., 171 N. Y. 538, 64 N. E. 442, LEADING ILLUSTRATIVE CASES.

And the New Jersey court says: "If a man's name be his own property, as no less authority than the United States Supreme Court says it is,55 it is difficult to understand why the peculiar cast of one's features is not also one's property, and why its pecuniary value, if it has one, does not belong to its owner, rather than to the person seeking to make an unauthorized use of it." 56

BIBLIOGRAPHY.

Magazine Articles: Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harvard Law Review, 193; Augustus N. Hand, Schuyler v. Curtis and the Right to Privacy, 36 American Law Register, 745; Denis O'Brien, The Right of Privacy, 2 Columbia Law Review, 437; Wilbur Larremore, The Law of Privacy, 12 Columbia Law Review, 693.

55 Brown Chemical Co. v. Meyer, 139 U. S. 540.

56 Edison v. Edison Polyform Manufacturing Co., 73 N. J. Eq. 136, 67 Atl. 392.

1

LAW OF TORTS

PART IX

EXTRA-HAZARDOUS OCCUPATIONS -ACTING AT PERIL-INSURING

SAFETY-MISCELLANEOUS

BY

GEORGE FITCH WELLS, LL.B., LL.D.*

CHAPTER I.

ACTING AT PERIL-GENERAL PRINCIPLES.

1. General discussion of subject.-It is a general rule of the law that one must so use his own personal or property rights as not to interfere with the similar rights of others, being expressed in the maxim: Sic utere tuo ut alienum non laedas (So use your own as not to injure another's property). It is upon this maxim that the law of torts, to a large extent at least, is based. But it is not every use of one's property, although such use may injure or inconvenience others more or less, that will fall within the operation of the rule. The law only deals with legal rights, and their violations, which are known as legal wrongs. By this is meant that the law does

* Acting Dean and Professor of Law, West Virginia University College of Law. Former Dean and Professor of Law, St. John's University, Toledo, Ohio.

not concern itself with matters which are deemed to be wholly within the forum of the conscience.1 Wherever there is a legal right, there is a corresponding duty on the part of every other person to respect that right; and if one who owes to another that duty of respecting some right in such other person has used his own rights or property in such a way as to violate that duty, then he has laid himself liable to be called upon to respond in damages for such violation of his duty. It is not within the province and scope of this chapter to discuss that class of cases where one, although suffering a diminished use and enjoyment of his property, or compelled to undergo an inconvenience, has no redress because his injury is brought about by the exercise of a superior right in another; such conditions, known to the law as damnum absque injuria (damage without injury),3 are more properly treated elsewhere. But we are here to consider the situation of one who, having no rights superior to those of his neighbor, still uses his property or permits it to be used so that it may or does injure the legal rights of others. Such person, so taking the chance of working an injury to his neighbor or the passer-by, is said to be acting at his own peril.

2. Instances of acting at peril.-Among the most familiar examples of one acting at his own peril, as outlined above, are: keeping or harboring a wild animal, or one of known vicious propensities; per

1 Cooley, Torts (student's ed.), p. 9.

2 Same citation, pp. 2, 3.

3 Same citation, p. 21; Bigelow, Torts (8th ed.), p. 39.