was not even necessary that the act should have been done intentionally, though innocently." 184 Thus, in Leame v. Bray,185 Gross, J., held that, if the injury be done by the act of the party himself at the time, or he be the immediate cause of it, though it happen accidentally, or by misfortune, yet he is answerable in trespass. In Underwood v. Hewson,186 the defendant was uncocking his gun. It accidentally went off, and wounded a bystander. The defendant was charged, and holden liable in trespass. Interference with the person by a blow,18: or restraining freedom of locomotion,1ss or interference with real property by going upon it,159 or by converting personal property to one's own use, as by taking it away, keeping, using, or destroying it,190 is generally regarded as conduct which

1847 Am. Law Rev. 652.

185 3 East. 593. Here a person on a dark night had got on the wrong side of the road, and injured another, and it was held that trespass lay. In Grant v. Moseley (1856) 29 Ala. 302, it was distinctly held that damages resulting from an accident could be recovered.

186 Strange, 596. This decision has never been questioned. Cole v. Fisher, 11 Mass. 136. And see Weaver v. Ward, Hob. 289, where a soldier was held liable for accidentally shooting a comrade with whom he was practicing at arms. In America it has been distinctly held that when an injury to another is caused by an act that would have amounted to trespass vi et armis under the old system of action, as where one by the negligent handling of a gun kills another, it is no defense that the act occurred through inadvertence and without the wrongdoer's intending it; that it must appear that the injury was inevitable, and utterly without fault on the part of the alleged wrongdoer. Morgan v. Cox, 22 Mo. 373. A hunter who kills a dog by mistake for a wolf will be liable to the owner though he act in good faith, and the dog may look like a wolf. Ranson v. Kitner, 31 Ill. App. 241. And see Taylor v. Rainbow, 2 Hen. & M. (Va.) 423; Hodges v. Weltberger, 6 T. B. Mon. 337; Sullivan v. Murphy, 2 Miles (Pa.) 298; Welch v. Durand, 36 Conn. 182; Chataigne v. Bergeron, 10 La. Ann. 699.

187 Post, p. 434, "Assault and Battery." And see Chapman v. State, 78 Ala. 463.

188 See post, p. 417, "False Imprisonment."

189 Brown v. Collins, 53 N. H. 442; Castle v. Duryee, 2 Keyes (N. Y.) 169. Post, p. 660, "Trespass." Guille v. Swan, 19 Johns. (N. Y.) 381; Striegel v. Moore, 55 Iowa, S8, 7 N. W. 413.

190 Post, p. 706, "Conversion." Boyce v. Brockway, 31 N. Y. 490; Hollins v. Fowler, L. R. 7 H. L. 757; Eten v. Luyster, 60 N. Y. 252, per Allen, J. Generally, as to trespass to chattels, see Morgan v. Cox, ante, note 186; Tally v. Ayers, 3 Sneed (Tenn.) 677; Jennings v. Fundeburg, 4 McCord (S. C.) 161.

191

violates absolute duties, and which creates corresponding absolute rights to redress. So, if an act complained of is a nuisance, the person creating and maintaining it is said to be absolutely liable, no matter how proper his motives and how useful his purpose.1 Legal remedies being substituted for personal war, it was natural that liability for torts should be regarded from the point of view of the man who suffered, and not from the point of view of the intention or mental attitude of the cause of that harm. Moreover, the distinction between rights that were absolute and the rights that were merely natural as distinguished from rights acquired, was not constantly present before the minds of the judges. And, historically, the injuries most frequent of occurrence were injuries directly to the person or property. Prior to the statute of Westm. II. there were none of the modern actions on the case. These are, indeed, the bulk of the present law of torts.

The category of things done at peril has been materially increased by an important class of cases more or less generally recognized. These cases involve a duty to insure safety192 as distinguished from the general class now under consideration, namely, the duty to insure against wrong generally, on the one hand, and from the duty merely to exercise proper care in view of all circumstances, on the other. Thus, in Rylands v. Fletcher,193 it was held that if a person gathers water in dangerous quantities on his own land, and it escapes and damages another's, the latter can recover, although the former exercised due care. A person is bound, under such circumstances, to insure the safety of third persons against harm from the dangerous agency he had collected on his premises.

Theory of Culpability.

Great jurisprudents have inclined to trace responsibility for torts to the mental element, as is done in the cases of crimes and contracts. Liability they would confine to moral shortcomings. According to Austin, whose theory is that of a criminalist, the char

191 This does not really involve reasoning in a circle as much as might at first appear. Consideration of cases where nuisance and breach of duty to insure safety seem to be identical will satisfy on this point.

192 Pol. Torts, c. 12.

193 L. R. 1 Exch. 265. Compare Losee v. Buchanan, 51 N. Y. 476.

acteristic feature of law is a sanction threatened or imposed by the sovereign for disobedience to the sovereign's command, and the greater part of the law makes a man civilly answerable for breaking it. He is compelled to regard the liability to an action as that sanction, or, in other words, as a penalty for disobedience, and accordingly liability ought only to be based on personal fault.19* Liability is so based in the wrongs of fraud, deceit, slander, libel, and malicious prosecution. And, even in cases of damage by direct act of force, it is insisted that the rule is that the "plaintiff must come prepared with evidence to show either that the intention was unlawful or that the defendant was in fault; for, if the injury was unavoidable and the conduct of the defendant free from blame, he will not be liable." 195 Critical modern investigation is not only ques

that intention, negli

194 Holmes, Com. Law, 77-129. "I assumed gence, heedlessness, or rashness is a necessary ingredient in injury or wrong. * Now, there can obviously be no breach of duty-no rupture of the vinculum juris-unless the duty has some binding force; that is to say, unless the sanction were capable of operating as a motive to the fulfillment of the duty. But sanctions operate upon the obliged in a twofold manner; that is to say, they counteract the motives or desires which prompt to a breach of duty, and they tend to excite the attention which the fulfillment of duty requires. And unless the party knew that he was violating his duty, or unless he might have known he was violating his duty, the sanction could not operate at the moment of the wrong, to the end of impelling him to the act which the law enjoins, or of deterring him from the act which the law forbids. Consequently, injury or wrong supposes unlawful intention or unlawful inadvertence. And it appears from the foregoing analysis that every mode of unlawful inadvertence must be one of those which are styled negligence, heedlessness, or rashness. The only instance wherein intention or inadvertence is not an ingredient in breach of duty is furnished by the law of England. * * * Unlawful intention or unlawful inadvertence is therefore of the essence of injury, and for this reason: that the sanction could not have operated upon the party as a motive to the fulfillment of the duty, unless at the moment immediately preceding the wrong he had been conscious that he was violating his duty, or unless he would have been conscious that he was violating his duty if he had adverted or attended as he ought." 1 Aust. Jur. 329.

195 Shaw, C. J., in Brown v. Kendall, 6 Cush. 292. "It is impossible to conceive the idea of a tort as separate and apart from an intentional wrong and injury, or such negligence or other misconduct as necessarily to imply such wrong or injury. A scienter is the very gist of a tort. To say that one may recover in tort without proving a scienter is to say that he may omit from his

197

tioning, but denying,196 and courts are recognizing many exceptions to, the clearest cases of absolute liability. The idea of absolute duty may remain, but not the idea of absolute right as an inevitable consequence of a violation of a material right.198 The change has been wrought largely through recognition of the doctrine that a person cannot be held liable for a wrong of which he was not rationally a cause. This theory accords with the common-sense view of the laws, that no man should be held responsible in damages unless he is at fault.

True Theory.

The true view, as Mr. Holmes has pointed out, is that the law has not adopted any logically consistent theory of liability.199 At the one extreme there are cases in which culpability is not an element, in which the defendant is held liable although he may not be to blame; as trespass to person or property, and breach of duty to insure safety. At the other extreme moral wrong is material to wrongs of malice and fraud.200 Negligence is a common battle ground. It is vigorously insisted that negligence is and that it is not a state of the mind; 201 and it is clear that the very authorities who deny that negligence is a state of the mind recognize that as

proof the chief element of his case." McCrary, J., in Shippen v. Bowen, 48 Fed. 659.

196 Post, p. 815, "Negligence"; Brown v. Kendall, 6 Cush. 292. Harvey v. Dunlop, Hill & D. 193; Nitro-Glycerine Case, 15 Wall. 524; Lansing v. Stone, 37 Barb. 15; Center v. Finney, 17 Barb. 94; Morris v. Platt, 32 Conn. 75; Paxton v. Boyer, 67 Ill. 132; Dygert v. Bradley, 8 Wend. 470; 1 Hill, Torts, c. 5, § 9; 2 Greenl. Ev. 85.

197 See, for instance, cases of trespass where the act is involuntary, and cases of damage by cutting timber, intentionally or unintentionally. Post, p. 660, "Trespass." And see post, p. 734, "Conversion," "Ministerial Duties." Assault and battery, see Holmes v. Mather, L. R. 10 Exch. 261; Stanley v. Powell, 1 Q. B. 86 (91); Ames, Torts, and cases cited in note at page 64. Nuisance, -high board fence cases. Post, p. 749. Generally, see Am. & Eng. Enc. Law, tit. "Negligence." In the absence of negligence, a man who accidentally shoots another is not liable in tort. Stanley v. Powell, 1 Q. B. 86 (91).

198 Townsh. Sland. & L.

199 Holmes, Com. Law, 79-81; 7 Am. Law Reg. 48, 652.

200 Post, p. 560, “Deceit."

201 Post, p. 820, "Negligence."

soon as a defendant acts not inadvertently, but willfully, his wrong is no longer negligence.2

203

202

It would seem that the theory of personal culpability as the basis of liability in tort is gaining ground. This will appear in subsequent discussion in different degrees and with varying certainty, inter alia, in (a) cases as to liability of persons of peculiar status (as of infants in negligence); (b) cases of trespass to persons 204 and of conversion (as in performances of ministerial duties); 205 (c) cases of libel and slander; 208 (d) cases of negligence and breach of duty to insure safety; 207 (e) malicious use of property; 208 (f) generally cases of conduct actionable because of wrong motive (as in more recent developments of malicious conspiracy); 209 and (g) in the development of the doctrine of connection as cause.

210

THE LAW SUBSTANTIVE AS TO MENTAL ATTITUDE OF THE TORT FEASOR.

18. The law of torts regards primarily, and in some cases exclusively, the conduct and not the mental attitude of the wrongdoer. Intentional wrongdoing may aggravate damages which the sufferer may be entitled to recover.

It is true that, in many instances, liability for torts is based on the wrong done, and not on the reason why.21. The law of torts treats every person as intending his conduct, and holds him responsible for

202 16 Am. & Eng. Enc. Law, tit. "Negligence,” p. 389.

203 Post, p. 871.

204 Holmes v. Mather, L. R. 10 Exch. 261; Stanley v. Powell, 1 Q. B. 86 (91). 205 Post, p. 734, "Conversion."

206 Post, p. 525, "Libel and Slander."

207 Cork v. Blossom, 162 Mass. 330, 38 N. E. 495, 8 Harv. Law Rev. 225. Berger Gas Light Co., 62 N. W. 336 and see exceptions enumerated.-Post, p. 832, "Negligence." The fact that responsibility for harm consequent upon commercial use of electricity has been subjected to the rules of negligence, and not governed by the doctrine of duty to insure safety,-post, 863, “Negligence," is significant.

208 Post, p. 557.

209 Post, p. 637.

210 Post, p. 61.

211 "Intention has found no place on the English law of torts." Lord Wensleydale, Chasemore v. Richards, 7 H. L. Cas. 297.