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 {\bf   Tortious Interference  with Contracts: Why Punish It?   }  \\

 



May 11, 2004 \\



\bigskip



Eric Rasmusen \\



\bigskip



{\it Abstract}



\end{center}



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 Transaction costs do not justify   the doctrine of tortious  interference with contract. Better reasons are malice, judgement-proofness, and foreseeable court error.



\bigskip



 



\noindent \hspace*{20pt} Indiana University Foundation Professor, Department of Business Economics and Public Policy, Kelley School of Business, Indiana University, BU456, 1309 E.  10th Street, Bloomington, Indiana, 47405-1701. Office: (812) 855-9219.  Fax: 812-855-3344 Erasmuse@indiana.edu.   \\ 

 Mypage.iu.edu/$\sim$erasmuse, Mypage.iu.edu/$\sim$erasmuse/papers/tortious-rasmusen.pdf.



\noindent

 I thank  Tillman Klumpp for   comments and  Yacheng Sun for research assistance.



 



\newpage



\noindent {\bf 1.  Introduction}



 Consider the following three hypotheticals:



 

\begin{quotation} 



{\it  Tort. } Injuror deliberately heckles a performance in Victim's theatre out of pure malice, causing damage of  \$10   to Victim.  What damages  should the court require Injuror to pay to  Victim? 



\end{quotation}  





\begin{quotation}



 {\it Contract.  } Promisor breaches a contract in which he promised to perform in Victim's theatre,    causing damage of  \$10   to Victim.   What damages should the court require  Promisor to pay to  Victim? 



\end{quotation}

 



  

 \begin{quotation}



 {\it Tortious Interference with Contract.  } Promisor breaches a contract in which he promised to perform in Victim's theatre,    causing damage of  \$10   to Victim.  Promisor does this because Inducer, who was aware of the contract, made him a better offer to perform that night.   What damages  should the court require Promisor and Inducer  to pay to  Victim?



\end{quotation}  

\newpage



 



Section 766 of the {\it Second Restatement of Torts } defines the tort of interference with contract as follows:



 

\begin{quotation}



One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.



 \end{quotation}

 

   Previous articles (McChesney, Long, Gergen, Myers) are vague as to what the remedies are, which is the crux of the matter. Clearly, punitive damages are available in tort, unlike in contract. Questions I still need to answer are:



1. Can Victim collect compensatory damages from both Promisor and Inducer, for double compensation overall?



2. Can Victim ask for restitution damages--- the gain to Inducer  from his wrongful conduct?



 \newpage



 What about efficiency? Four explanations   have been attempted.





\noindent 

1. Court error (Bevier)





\noindent

 2. Transaction costs (McChesney)









\noindent

 3. Malice



\noindent

 4. Judgement-Proofness (Landes-Posner, bondage cases of the  1900 South)  



 \newpage



 \noindent 

{\it The Information Story } 



 

 



(1) Nature chooses the Victim's  investigation cost, $x \geq 0$, using the density $f(x)$ (denote the cumulative probability by $F(x)$).  



(2) The Victim pays $x$ if he wishes  and learns which one of a    large population of possible performers  with  average value $v=a$ actually has the higher value $v=a+b$.  



(3) The Victim chooses a performer with whom to negotiate. 



(4) The Victim and the chosen  Performer bargain to choose a performance price $p_1$, which will be  either $p_1=a$ (if $v$  is unknown) or some $p_1$ in the interval $(a, v)$.



(5) If the  Inducer chooses to induce breach, the Inducer and the Performer bargain to choose a performance  price $p_2$ in the interval  $(p_1, v)$.



(6) If the Inducer induced breach, the  court forces the Inducer to pay damages of $d$ to Victim. 



(7) If the Inducer did not induce breach, the  Performer may breach anyway. The court then forces him to pay expectation damages to Victim, which are zero  in this case because $p_1>a$. 









\noindent 

{\it  Payoffs:}  

The   Victim's payoff is $v-p_1$ if no breach occurs, minus $x$ if he discovered $v$ in advance.  If the contract is breached, his payoff is  $d$, or $d-x$ if he discovered $v$ in advance. 



The Performer's payoff is the price he gets (either $p_1$ or $p_2$).



The Inducer's payoff is  0 if no breach occurs. Otherwise, it is $v - p_2 -d$. 



  



\newpage



 The first-best solution would maximize the sum of the payoffs of Victim and Performer.\footnote{xxx Maybe change these to Payer, Performer, and Inducer.}  Without investigation, the Victim would choose the Performer randomly, so in expectation $v=a$ and the sum of the payoffs is $a$. With investigation, the Victim would choose the high-value Performer,  so $v= a+b$ and the sum of the payoff is $a+b-x$. Clearly, investigation should occur if $b>x$ and not otherwise. Thus, the overall expected social payoff is 

$$

  a+    \int_0^b (b-x) f(x) dx

$$

 

  If damages are high, there will be no breach.   The Victim will forecast the value of $p_1$, which is the result of bargaining between him and the Performer.  He will choose to pay $x$ if $a+b - p_1 >x$, so 

$$

  a+   \int_0^{b+ (a  -p_1) }  (b-x) f(x) dx,     

$$

 which is smaller than in the first-best, since $a<p_1 $. 



This will happen if the Inducer's breaching payoff is negative, which happens if $a+b - p_2 -d <0$. Thus, the critical level of damages is $d^*=a+b - p_2$. 



 If damages are lower than $d^*$, breach will occur if $p_1 >a$, because the Inducer will then deduce that $v = a+b$.  The Victim's payoff from investigation would be $d$, so he will investigate if $d>x$. This yields a social payoff of



 $$

  a+    \int_0^d (b-x) f(x) dx  .

$$



 If $d<a+b-p_1$, then welfare is lower with the Inducer's breach than otherwise.  This is so, in particular, if damages are zero--expectation damages. 



 \newpage

 

 



 \noindent 

{\bf The Investment Story }  



   

 



(1) The Victim invests $x$ in the project, adding $f(x)$ to the base value of $a$ so that the value becomes $v=a+f(x)$.  



(2) The Victim and the  Performer bargain to choose a performance price $p_1$ in the interval $[a, a + f(x)]$.



(3) If the  Inducer chooses to induce breach, the Inducer and the Performer bargain to choose a performance  price $p_2$ in the interval  $[p_1, v]$.



(4) If the Inducer induced breach, the  court forces the Inducer to pay damages of $d$ to Victim. 



(5) If the Inducer did not induce breach, the  Performer may breach anyway. The court then forces him to pay expectation damages to Victim, which are zero  in this case because $p_1>a$. 









\noindent 

{\it  Payoffs:} The Performer's payoff is the price he gets (either $p_1$ or $p_2$). 



The   Victim's payoff is $v-p_1-x$ if no breach occurs.  If the contract is breached, his payoff is  $d-x$.



The Inducer's payoff is  0 if no breach occurs. Otherwise, it is $v - p_2 -d$. 



 

 

\newpage

 

  

  {\it  Tort. } 

   Injuror deliberately heckles a performance in Victim's theatre out of

pure malice, causing damage of  \$10   to Victim.  What damages  should

the court require Injuror to pay to  Victim?

 

 



 

 

  {\it Contract.  } 

   Promisor breaches a contract in which he promised to perform in

Victim's theatre,    causing damage of  \$10   to Victim.   What damages

should the court require  Promisor to pay to  Victim?

   

  {\it Tortious Interference with Contract.  } 

   Promisor breaches a contract in which he promised to perform in

Victim's theatre,    causing damage of  \$10   to Victim.  Promisor does

this because Inducer, who was aware of the contract, made him a better

offer to perform that night.   What damages  should the court require

Promisor and Inducer  to pay to  Victim?

 









    \newpage



The doctrine of tortious interference with contract is a curious one.

There are three ways in which the law deals with  a situation in which

Doe  has injured Roe.



   First, Roe  may have

no legal recourse. This is the case if the injury is, for example, to

start a new  grocery store that competes with  Roe's existing

store, or to sue Roem, or repossess Roe's car  after he fails to make 

  his loan payments. None of those injuries are legal wrongs.





Second, Roe may be able to sue for compensation. This is the case

in breach of contract;   if Doe  refuses to perform what he

promised, the court will either order Doe to perform (specific

performance) or, more commonly,  order him to pay enough cash to make

Roe no worse off than if performance had occurred (money damages).





    Third, Doe  may be punished, being required to pay more than

the harm he causes Roe. This is the case  in criminal law and

with ``intentional torts'', where criminal penalties and punitive

damages are added to the compensation to which the Victim has  a

right.\footnote{We are here concerned with an injuror who knowingly

inflicts harm, which explains why I omitted two prominent examples of

how the law deals with harm: 1. Offering no legal recourse when an

accident occurs but the injuror was neither aware that it would happen

nor negligent, and 2. Offering compensation to the victim when an

accident occurs but the injuror, while negligent, did not intend the

harm.}



   \newpage



Section 766 of the Second Restatemen of Torts defines the tort of

interference with contract as follows:



 

 

One who intentionally and improperly interferes with the performance of

a contract (except a contract to marry) between another and a third

person by inducing or otherwise causing the third person not to perform

the contract, is subject to liability to the other for the pecuniary

loss resulting to the other from the failure of the third person to

perform the contract.

 



  I still have to pin down the law. Previous articles (McChesney, Long,

Gergen, Myers) are vague as to what the remedies are, which is the crux

of the matter. Clearly, punitive damages are available in tort, unlike in contract. Questions I still need to answer are:



1. Can Victim collect compensatory damages from both Promisor and Inducer, for double compensation overall? 



2. Can Victim ask for restitution damages--- the gain to Inducer  from his wrongful conduct? 



 I will assume for simplicity below that Victim cannot collect double compensatory damages and cannot collect restitution damages.  If either of these assumptions is false, the doctrine of tortious interference can lead to much greater inefficiency than otherwise. 



\newpage





 At any rate, the mixture of tort and contract   is perverse.   It fails

to punish  



    Finding an explanation   from either morality, legal

formalism, or efficiency  is   difficult. 



 As just noted, everyday morality would point to   Promisor as being at

fault just as much or more than  Inducer.

 

  



A  formalist explanation   might be  that   Inducer has induced

Promisor to do what is illegal (to breach the contract-- a civil wrong,

if not a criminal one), and so deserves punishment.

Anson/Corbin (1919)   says    

 

   ``There is a clear distinction between inducing {\it

A} to break his contract with {\it X}, and inducing A not to enter into

a  contract with X. The man who induces another to break a contract

induces him to do what is in itself actionable: but not liability

attaches to the refusal to make a contract.  Consequently, where A is

induced not to contract with X, the inducement, if it is to be

actionable, must be  of an unlawful kind, as for example acts of

coercion and intimidation; or, again, where there is a conspiracy by

more than one person to injure; for `numbers may annoy and coerce, where

one may not.''\\

  [p. 330, footnote to Quinn v. Leathem, (1901) A.C. 511, 538] 

  



 But, again, this fails to explain why   

Promisor himself is  liable only for compensation and not for

punishment. Legal formalism does not have a good explanation for the

doctrine of tortious interference.





 Richard Epstein  argues  in a similar vein that  

  the law treats the contract as property, and that the

Inducer has destroyed or stolen   Victim's property. But that  too

fails to explain why   Promisor is not liable for punitive damages.





\newpage



 What about efficiency? Four explanations   have been

attempted.

 

\noindent

1. Transaction costs (McChesney)



\noindent

2. Court error (Bevier)



\noindent

3. Malice



\noindent

4. Judgement-proofness (Landes-Posner, bondage cases of the  1900 South) 

\footnote{

That won't work, I think, because while it explains why the Inducer

would be liable, it does not explain why damages could be punitive.}



\newpage



 

\noindent

 {\bf 2. Transaction Costs: McChesney}



  {\it Tortious Interference with Contract.  } 

   Promisor breaches a contract in which he promised to perform in

Victim's theatre,    causing damage of  \$10   to Victim.  Promisor does

this because Inducer, who was aware of the contract, made him a better

offer to perform that night.   What damages  should the court require

Promisor and Inducer  to pay to  Victim?





  As in McChesney's example,  assume Promisor's performance cost is \$40 and  Victim's performance value is \$55, and they arrive at a contract price of \$45. Then Inducer appears and can either negotiate with Victim for assignment of the contract or  offer   Promisor  some amount to breach  the  contract and switch  performance from Victim to Inducer.



 McChesney assumes that Inducer and Promisor agree on a price of \$60 regardless of any future costs either of them might incur. Let us instead assume that if Promisor is going to have to incur future costs of $X$ as a result of the agreement, the price will have to be \$60+$X$. 





 Let us also specify some numbers that McChesney leaves unspecified: let   the performance value  be \$90 for Inducer,  let the punitive damages that a court would award be \$50, and let the transaction cost of any negotiation or litigation be \$0  for each party involved, for our first step in the analysis. 







\newpage





  {\it Tortious Interference with Contract.  } 

   Promisor breaches a contract in which he promised to perform in

Victim's theatre,    causing damage of  \$10   to Victim.  Promisor does

this because Inducer, who was aware of the contract, made him a better

offer to perform that night.   What damages  should the court require

Promisor and Inducer  to pay to  Victim?

 



\noindent

 {\bf  Case 1.  Efficient Breach Doctrine: Zero Transaction Costs}.  

   Victim sues Promisor and the court   awards \$10 in 

damages. 



Or, Promisor and Victim negotiate, and Promisor pays Victim \$10  to

assign him the contract or  waive his rights to performance.



\bigskip



\noindent

 {\bf Case 2.   Tortious Interference Doctrine: Zero Transaction Costs--No Punitive Damages}. 

 Victim sues Promisor or Inducer, and the court   awards \$10 in  compensatory

damages.\footnote{ McChesney notes that Victim indeed has the

legal

right to sue Promisor as a separate action, and that the law is unclear

on whether the damages in tortious interference are restitution or

compensation.  He does not mention punitive damages.}  



Or,  anticipating what the court will do, Inducer will negotiate with

Victim and/or Promisor, and  one of them will pay him \$10. 

 





\newpage



 In Cases 1 and 2, the efficient outcome--- performance for Inducer instead of Promisor--- occurs regardless of the legal rule, as McChesney notes. But now let us add punitive damages: 





 \bigskip

\noindent

 {\bf Case 3.   Tortious Interference Doctrine:  Zero Transaction Costs--  Punitive Damages}. 

  If Promisor  were to breach without the consent of Victim, Victim would go to court and get \$10 in compensatory damages from either Promisor or Inducer and \$50 in punitive damages from Inducer. This will not occur, because Inducer would end up worse than if he refrained from inducing breach. 



  Instead, Promisor or Inducer will obtain permission from Victim to tear up the contract in exchange for a payment of between \$10  (the Victim's loss) and \$35 (the efficiency gain from having performance  be for Inducer instead of Victim). 



  

    McChesney's conclusion that with zero transaction costs the legal rule does not matter to efficiency survives, but notice  that the zero transaction-cost assumption is   much more important, because if the parties could not negotiate in Case 3, no breach would occur and the result would be inefficient.  





\newpage



\bigskip

\noindent

 {\it Positive Transaction Costs}



Now let the cost of any negotiation or litigation be \$1  for each party involved.



 \bigskip





\noindent

 {\bf Case 2$'$.   Tortious Interference Doctrine:  Positive Transaction Costs--No Punitive Damages}. Inducer and Victim negotiate to have  Victim assign the contract to Inducer     at a transaction cost of \$2,  and  Inducer pays Victim between \$9, the net amount Victim would gain if no agreement were reached and  they went to court, and \$11, the net amount  Inducer would  lose if they went to court. The total transation cost is \$2.   



\noindent

 {\bf  Case 1$'$.  Efficient Breach Doctrine: Positive Transaction Costs}. Inducer and Victim negotiate to have  Victim assign the contract to Inducer     at a transaction cost of \$2,  and  Inducer pays Victim between \$9, the net amount Victim would gain if no agreement were reached and  they went to court, and \$11, the net amount  Inducer would  lose if they went to court. The total transation cost is \$2.    



\bigskip



\noindent

 {\bf  Case 1$''$.  Efficient Breach Doctrine: Positive Transaction Costs}.   Inducer and  Promisor  negotiate  at a transaction  cost of \$2 to have   Promisor breach and perform for Inducer instead of for Victim.  Victim and    Promisor then either litigate or negotiate at a transaction cost of \$2 to compensate Victim for the breach. The total transation cost is \$4.    



\bigskip









\newpage

 

  McChesney's story:



 

   ``The original negotiation between Promisor and Victim to form the contract necessarily established the amount Promisor would be paid if she performed (\$45) but not Victim's expected gains. If Inducer negotiates with Victim for  Promisor's performance, the already-established amount to be paid to Promisor (\$45) still holds; no price  terms of the new arrangement concerning Promisor remain to be determined. [So that is what Inducer will do-- regardless of the legal rule!]  But if Inducer is free instead to negotiate with Promisor, compensating Victim later (the ``efficient''-breach rule), the question of the amount to be paid Victim remains to be settled. Absent a liquidated damages clause, Victim's gain has never been established. Negotiation/litigation will be required subsequently to establish the amount of Victim's compensation when Promisor breaches. 



... Under either rule there will be negotiation before the breach, either between Inducer and Victim (tortious interference) or between Inducer and Promisor (``efficient'' breach)   [No: always between Inducer and Victim, if the contract is assignable] ... But in a regime of tortious interference, the Inducer-Victim negotiation before the fact is the only  transaction cost. With a rule of ``efficient'' breach, there is still the subsequent problem of  of Inducer or Promisor compensation Victim, resolution of which will require a second round of transaction costs (either litigation or negotiation)....''

   



 

 

\newpage



 \noindent 

{\it Court Error: Bevier,  Information story:} It is common knowledge that performance by

most singers are worth \$100 but a few are worth \$150.  Victim has a

special talent for finding talent, and sees that Promisor is worth

\$150.

Since Promisor can only get offers of \$100 from other people, they

settle on a price of \$125.  Inducer sees this and deduces that Promisor

is worth \$150, so he offers \$149.



   Expectation damages would be \$25 to Victim, which is enough to

deter Promisor from breach even without the doctrine of tortious

interference.



 But what if the court does not know the \$150 value?   The court could

simply note that Inducer offered \$149 and say that that is the value.

But then suppose Inducer's value is always \$20 less than  Victim's.

Inducer could come along and offer \$126 to Promisor, who would breach.

The court would award expectation damages of \$1 to Promisor. Inducer

would then offer to return Promisor to Victim for an additional \$10.

Or, if Inducer's value is also \$150, Inducer and Promisor could collude

to breach with a new price of \$126 so as to keep damages low.

So the court cannot use that method of estimating damages. 



 Instead, the court has to estimate damages directly. Suppose it does

this fairly well, estimating the value to be \$140, \$150, and \$160

with equal  probability. If the court error is unpredictable, the error

will not make any difference. The three parties will, at least if they

are risk neutral, simply look at the expected value of damages, which is

\$150.



But if the damage estimation error is predictable, things are different.

Then, Inducer will choose to induce breach only if it foresees a court

estimate of \$140. This idea of predictable versus unpredictable error

is what I examine in Rasmusen (1995) in connection with nuisance suits.

It depends, of course, on the court not using the information that the

Inducer foresees the error and decides to bring suit only when there is

an underestimate.



\newpage



 \noindent 

{\it Investment story:}   Initially, performance is only worth \$100.

Victim, however, makes investments that increase its value to \$150 to

Victim or to anyone else. This increase in value (and perhaps even the

cost of investment) is hard to demonstrate to outsiders, though. The

court must estimate the value, and as in the previous example, has

predictable estimates of \$140, \$150, and \$160.



\newpage



\noindent

{\bf  4.  Malice}



    Malice is a word used in many ways.  As McChesney notes, the use in

the law of tortious interference is confused, sometimes having its

everyday meaning of spite, and sometimes a legal meaning of awareness

that an action will cause harm.  The everyday meaning provides a sound

economic motivation for allowing an action for tortious interference.



Suppose that Inducer actually does not value Promisor's services at more

than \$55.  Instead, he derives 1.5-for-1 utility from Victim's

disutility, so he is willing to spend a \$1.50 to make Victim lose 1

\$1.

He lures away Promisor at a price of 57 dollars.  Under efficient

breach, Victim sues Promisor for \$10, at a transaction cost of \$1,

which means that Victim is out \$2 total-- his initial \$1 for

negotiating the original contract, and \$1 more for the lawsuit.

Promisor is even, having paid \$1 to negotiate the new contract with

Inducer and \$1 in litigation.  Inducer is down \$3, having paid \$2 too

much for Promisor's services and incurred \$1 in transaction costs.  He

receives \$3 in utility from Victim's loss, however, so Inducer comes

out even.  There is a social loss, however: wealth is down by \$2, since

Promisor and Inducer have not changed their utility but Victim's has

declined by that amount.



This is an argument made by Gordon Tullock, who noted that altruism is

socially desirable because it has the opposite effect:  If I give \$1 to

a beggar, then I must derive utility of at least \$1, and the beggar

gets

utility of \$1, so wealth has been created.  Malice works the opposite,

\emph{destroying} wealth.



  



\newpage





\noindent

{\bf  4.  Judgement-Proofness}



  This is a good argument, if perhaps of limited application. Judgement-proofness creates inefficiency, because a person can do harm without paying for it. Suppose Promisor could breach his duty to Victim, perform for Inducer instead, be paid by Inducer, but then become judgement-proof, by fleeing to another jurisdiction, by hiding the funds, or by spending the funds quickly. Then without a doctrine of tortious interference, Promisor will be too ready to breach. Under tortious interference, however, if Inducer is unable to flee, hide funds, or spend quickly, Inducer's liability will make him unwilling to reward Promisor's breach. 



  This does not tell us why punitive damages should be granted for tortious interference, but we can go one step further to justify them.   It may be common for not just the Promisor but the Inducer to have some possibility of becoming judgement-proof. Suppose each goes into the transaction with an 80\% chance of post-transaction, pre-lawsuit insolvency. Then inefficient breach is a real possibility, and to deter it will require legal damages greater than compensatory damages, since often neither of them will end up paying the damages the court awards. Thus, it will be useful to have not one but two  solutions to the possibility of judgement-proofness:  two parties being liable, and high damages when damages are actually paid. 







\newpage

 \noindent

 {\bf References} 



Anson, William R. \& Arthur Corbin (1919)   {\it Principles of the Law

of Contract}, 14th English Edition/3rd American Edition, New York: The

Banks Law Publishing Company/Oxford University Press, 1919.





   BeVier, Lillian R.   (1990) ``Reconsidering Inducement,''   {\it

Virginia Law Review},  76:  877-xxx (xxx 1990).



 





Epstein, Richard A.   (1987)  ``Inducement of Breach of Contract as a

Problem

of

Ostensible Ownership,''

  {\it Journal of   Legal Studies}, 16: 1, 3  (fff 1987).  



Friedmann, Daniel (1989) ``The Efficient Breach Fallacy,''  {\it Journal

of   Legal Studies}, 18: 1-24  (January 1989).





 



 Gergen, Mark P. (1996) ``Tortious Interference: How It Is Engulfing

Commercial Law, Why This Is Not Entirely Bad, and a Prudential Response,

'' {\it Arizona Law Review}, 

38: 1175 (Winter  1996).



 





McChesney, Fred S. (1999)  ``Tortious Interference with Contract versus

'Efficient' Breach: Theory and Empirical Evidence,''  {\it Journal of

Legal Studies},

  28, 1:  136-186. (January 1999).



  Landes, William M. \& Richard A.  Posner  (1980) ``Joint and Multiple

Tortfeasors:

An Economic Analysis,''

  {\it Journal of   Legal Studies},  9: 517-fff (fff f1980) (app.  II). 







 



 Long, Alex B. (2000) ``Tortious Interference with Business Relations:

"The Other White Meat" of Employment Law,'' {\it Minnesota Law Review}

84: 863 (April 2000).



 



Myers, Gary (1993) ``The Differing Treatment of Efficiency and

Competition in Antitrust and Tortious Interference Law,'' {\it Minnesota

Law Review} 77: 1097-xxx.

 

  Perlman, Harvey S. (1982) ``Interference with Contract and Other

Expectancies: A Clash of Tort and Contract Doctrine,'' {\it University

of Chicago Law Review}, 49:61-xxx.



Rasmusen, Eric (1995)  ``Predictable and Unpredictable Error in Tort

Awards: The Effect of Plaintiff Self Selection and Signalling," {\it 

International Review of Law and Economics }  15: 323-345 (September

1995).



Restatement of Torts. 





{\it Bailey v. Alabama}, 219 US 219 (1911). 



136 F. 707 (ED Ark. 1905)



{\it Lumley v.  Gye}, 2 El.  \& Bl.  216, 118 Eng.  Rep.  749 (1853).







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