excuse, as in the case of a mere trespass.240 Malice is said to have been present whenever the injurer contemplated harm to the person injured, though he may also have entertained a desire to benefit himself, and though the harm contemplated may be merely incidental to the fruition of that desire. It is present, therefore, though in different degrees, in the highwayman who murders a man for his purse, and the trespasser who gets over a fence to take an apple.241 Of course, the malice need not always be for the benefit of the wrongdoer.242 Whenever there is a sinister or improper motive actually present in the mind of the wrongdoer, the malice is said to be malice in fact, express malice, or actual malice.243 This is proved by evidence as to the state of the mind of the wrongdoer. Malice in law, or implied malice, does not refer to the consciousness of the wrongdoer; nor to motive, but to knowledge of wrongdoing. It is the inference of law from facts in evidence. It is proved by showing actual occurrences.244

Malice in law or in fact is an essential ingredient of certain forms of specific wrongs or torts, such as malicious abuse of process, malicious prosecution, libel and slander, fraud and deceit.245

In fraud, it is sometimes contended that action lies only for false representations, but there is authority for sustaining such an action upon negligent representations.216

240 Innes, Torts, 41.

241 Id.

242 Chesley v. King, 74 Me. 164.

243 Smith v. Rodecap, 5 Ind. App. 78, 31 N. E. 479; Ramsey v. Cheek, 109 N. C. 270, 13 S. E. 775. Whether or not the fact that defendant's conduct complained of was intended as a joke may avail as a defense depends upon a reasonable expectation of a practical joke from antecedent conduct. Wartman v. Swindell, 54 N. J. Law, 589, 25 Atl. 356.

244 Townsh. Sland. & L.; post, p. 555, "Malicious Wrongs." Malice may be found either in a wrongful motive, or, in many cases, in a wrongful act, whatever the motive. Bigelow, Torts, 5, note 1. Malice in law may arise from an act done wrongfully and willfully, without reasonable excuse or probable cause, not necessarily only from an act done from ill feeling, spite, or desire to injure another. Tucker v. Cannon, 32 Neb. 444, 49 N. W. 435. 245 Post, pp. 632, 602, 512, 558.

246 Post, p. 560, "Deceit."

CONNECTION AS CAUSE.

22. Liability for conduct does not attach unless the conduct was the legal cause of the injury complained of.

As in nature every change is the result of some cause, so it is in the legal relations between man and man. The determination of legal cause has three principal objects: (a) that where there has been a wrong committed, for which liability should attach, the person who is to be held answerable in an action in a court of common law should be selected; (b) that if the person injured be himself a wrongdoer, in any respect, it can be determined whether or not. his wrongdoing should disentitle him from recovering; and (c) that the extent of the injurious consequences for which the person thus ascertained to be responsible to such injured person, not disentitled, be fixed.

A man is responsible for his own conduct only. In determining liability for a given harm suffered, the fundamental question is, did the party charged cause the harm? In ascertaining this the courts naturally select the proximate as distinguished from a re mote, cause. As Lord Bacon said, "It were infinite for the law to judge of cases and other impulsions one of another, and therefore contenteth itself with the immediate cause, and judgeth of acts by them, without looking to any further degree." 247 "In jure, non remota causa sed proxima spectatur." 248 So far as mere definition is concerned, that of Jenkins, J., in Goodlander Mill Co. v. Standard Oil Co.,24 is as adequate as any: "The proximate cause of an injury is that which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. * The remote

cause is that cause which some independent force merely took advantage of to accomplish something not the probable or natural effect thereof." But what is a proximate cause is a matter requir ing great nicety to determine.

247 Bac. Max. Reg. 1.

24 Broom, Leg. Max. 216–228, 853; Hoag v. Railroad Co., 85 Pa. St. 293. 249 11 C. C. A. 253, 63 Fed. 400-407.

23. If the damage complained of would have ensued notwithstanding the conduct complained of, then such conduct is not a cause.

A cause is a necessary antecedent. It must be a causa sine qua non of the damage complained of. If, however, the damage would have occurred whether defendant had done his duty or not, then the defendant, even though a wrongdoer, is not the cause of the wrong. Therefore, where horses became frightened, and ran into a hole in the ice, near a highway, negligently left unguarded, and were drowned, it was held that their owner, though free from negligence, could not recover from the person whose duty it was to place a guard around the hole, if their speed was so great that a guard would not have prevented the casualty.250 Conversely, plaintiff's own wrong does not bar his recovery, if the injury complained of would have happened just the same, notwithstanding his improper conduct.201

24. The defendant's wrongful conduct may have been so connected with the damage complained of that the damage would not have been done, except for the conduct, and still the conduct may not be the cause.

Defendant's conduct may be a necessary antecedent of the harm complained of, and may be wrongful, and still not be the juridical cause of the harm.2 252 The rule of law is that negligence, to render defendant liable, must be the causa causans or proximate cause,

250 Sowles v. Moore, 65 Vt. 322, 26 Atl. 629. The law is not different where defendant's duty to guard was statutory. Stacy v. Knickerbocker Ice Co., 84 Wis. 614, 54 N. W. 1091. Contrast Union St. Ry. Co. v. Stone, 54 Kan. 83, 37 Pac. 1012.

251 Post, p. 959, "Contributory Negligence."

252 Thus, an iron post used as a barber's sign stood on the sidewalk six inches from the curb. It was not fastened to the sidewalk, except by three prongs projecting from the base into holes drilled in the sidewalk. The post had stood there for 18 months, when defendant's servant negligently backed his wagon against the curb, so that the projecting end of the wagon knocked the post over upon plaintiff. It was held that the act of defendant's servant, and not the act of placing the post there, was the proximate cause of the accident. Wolff Manuf'g Co. v. Wilson, 152 III. 9, 38 N. E. 694.

of the injury, and not merely a causa sine qua non.253 But the line as to this matter is often a fine one. Thus, where a person carelessly left another's bars down, in consequence of which the latter's sheep were destroyed by bears, the court denied the right to recover. The court, however, was much divided in reasoning.254 The conclusion would not be accepted as law in many jurisdictions.255 Essentially the same idea is often put in other words by saying that a defendant is not liable when his alleged wrongful conduct was a condition, and not a cause.2 256

Condition not Cause.

The courts are entirely agreed that when defendant's wrongful conduct is the condition of the harm complained of, and not the proximate cause, then defendant is not liable in tort.257 But they are by no means agreed as to what is the difference between a cause and a condition. Thus, delay in performance of a contract,258 or wrong in the performance of a contract, resulting in delay, whereby damage ensues, ,259 which but for such delay would not have occurred,

253 Per Kelly, C. B., in Lords Bailiffs v. Corporation of Trinity House. L. R. 5 Exch. 204, affirmed L. R. 7 Exch. 247. Here, however, plaintiff was held to be the proximate cause.

254 Gilman v. Noyes, 57 N. H. 627.

255 Damages are generally regarded as proximate if they are natural and probable consequences, whether they could or could not be foreseen. The court in the case argued that such consequences should have been anticipated. See opinion of Ladd, J., Gilman v. Noyes, 57 N. H. 631.

25€ "A condition is a mechanical antecedent without causal power. A cause is the responsible voluntary agent changing the ordinary course of nature." Cicero de Officii, lib. 1, cited in Whart. Neg. 824.

257 Whart. Neg. $$ 85, 86.

258 Thus, failure to gin cotton was held the condition of its subsequent burning. James v. James, 58 Ark. 157, 23 S. W. 1099; Chicago. St. L. & P. R. Co. v. Williams, 131 Ind. 30, 30 N. E. 696; Martin v. St. Louis, I. M. & S. Ry. Co., 55 Ark. 510, 19 S. W. 314; Deming v. Merchants' Cotton-Press & Storage Co., 90 Tenn. 306, 17 S. W. 89; Missouri Pac. Ry. Co. v. Cullers, 81 Tex. 382. 17 S. W. 19; Chicago, St. L. & P. R. Co. v. Baines, 2 Ind. App. 213, 28 N. E. 328; St. Louis, I. M. & S. Ry. Co. v. Commercial Union Ins. Co., 139 U. S. 223, 11 Sup. Ct. 554.

259 In failing to transport in time. Reid v. Evansville & T. II. R. Co., (Ind. App.) 35 N. E. 703,-cited by counsel for the receivers of Railroad Co. v. Reeves, 10 Wall. 176; Morrison v. Davis, 20 Pa. St. 171; Denny v. Rail

is a condition, not a cause. But there is much disagreement on the point. Perhaps the best illustration of what is commonly regarded as a condition, as distinguished from a cause, is to be found in the cases subsequently discussed, where the damage complained of could not have occurred, except for plaintiff's wrong. doing, and yet where plaintiff was allowed to recover because such wrong was not the legal cause of the damage complained of.260 The distinction between cause and condition would be valuable, if there were any definite standard for determining what is a cause and what is a condition. The only standard by which this can be determined is the same as that which determines a proximate from a remote cause; for example, the test of natural and probable consequences. Accordingly, "condition” or “occasion," while affording a convenient verbal distinction, is, in use, likely to mislead thinkers into a conviction that they have something which they have not. Inevitable Accident.

The English doctrine has been said, on high authority, to be that an accident not avoidable by any such precaution as a reasonable man could be expected to take is a good defense to an action for damages. 201 A more generally accepted view, however, is that:

road Co., 13 Gray, 481; St. Louis. I. M. & S. Ry. Co. v. Commercial Union Ins. Co., 139 U. S. 223, 11 Sup. Ct. 554; New York Lighterage & Transp. Co. v. Pennsylvania R. Co., 43 Fed. 172; Hoadley v. Transportation Co., 115 Mass. 304.

260 Chapter 2, post; and see Newcomb v. Boston Protective Department, 146 Mass. 596, 16 N. E. 555; post, "Contributory Negligence."

261 Fraser, Torts, 17; Pol. Torts, c. 4, subds. 8, 9. And see Innes, Torts, 18, 19, to the effect that an inevitable accident has never been defined, and seems properly to mean that which is produced by unpreventable physical influence, which cannot be traced to the instrumentality of any person; citing Sharp v. Powell, L. R. 7 C. P. 253. In other words, When the harm complained of is the result of circumstances, the bringing of which cannot be traced to the conduct of any person, it is not an injury. Innes, Torts, 18. "No one is liable for a mischief resulting from accident or chance casus; that is to say, from some event, other than act of his own, which he was unable to foresee, or foreseeing, was unable to prevent. This, I think, is the meaning of the casus or accident, in the Roman law, and of chance, or accident, in our own law. By the common law,' says Lord Mansfield, ‘a carrier is an insurer. It is laid down that he is liable for every accident, except by the act of God, or the king's enemies.' Here, the term accident