too, though the defendant may have acted strictly in self-defense; the plaintiff having been the aggressor.

Modern Doctrine

While the absurdity of this doctrine was soon admitted in criminal law, yet so firmly was the rule established that, although self-protection was recognized at an early date, still accident or misadventure does not appear to have been squarely admitted as a defense to tort actions in this country until the decision in 1835 of Vincent v. Stinehour,10 and in England until Stanley v. Powell 11 in 1891. The facts in the latter case, when contrasted with those in Weaver v. Ward, show a total repudiation of the common-law rule, for plaintiff was injured by a glancing bullet fired from the gun of defendant, there being no negligence on the latter's part. At the present time, therefore, it may be considered as thoroughly established that for purely accidental injuries arising from the doing of an inherently lawful act in a proper manner no liability may arise.12 Though the qualifying terms "inevitable" or "unavoidable" accident have sometimes been urged, these are manifestly improper, since it is well-nigh impossible to conceive of a case which would comply with such a test.13

involuntary, see Smith v. Stone, Style, 65, where in an action for trespass defendant pleaded that he was carried upon the land of the plaintiff by force and violence of others. This was held to be "the trespass of the party that carried the defendant upon the land, and not the trespass of the defendant."

8 Anonymous, Y. B. 21 & 22 Edw. I, 586; Anonymous, Y. B. 12 Edw. II, fol. 381.

9 Chapleyn of Greye's Inn v.

Y. B. 2 Hen. IV, fol. 8, pl. 40; Anonymous, Y. B. 33 Hen. VI, fol. 18, pl. 10. 107 Vt. 62, 29 Am. Dec. 145.

11 STANLEY v. POWELL, 1 Q. B. 85, J. P. 327, 60 L. J. Q. B. 52, 63 L. T. Rep. N. S. 809, 39 Wkly. Rep. 76, Chapin Cas. Torts, 21.

12 Brown v. Kendall, 6 Cush. (Mass.) 292; Spade v. Lynn & B. R. Co., 172 Mass. 488, 52 N. E. 747, 43 L. R. A. 832, 70 Am. St. Rep. 298; Brown v. Collins, 53 N. H. 442, 16 Am. Rep. 372; Losee v. Buchanan, 51 N. Y. 476, 10 Am. Rep. 623; Wall v. Lit, 195 Pa. 375, 46 Atl. 4; Miller v. Casco, 116 Wis. 510, 93 N. W. 447.

18 Thus, where plaintiff's injuries were the result of the act of defendant's employé, who was ejecting a drunken passenger, an objection that the phrase "inevitable or unavoidable accident" was not used in the charge was not sustained. The accident was not

Not only does the modern rule find its application in cases where the defendant has acted under circumstances which gave him an absolute freedom of choice to do or not to do the particular thing from which damage resulted, as where he undertook to part fighting dogs,1 to eject a drunken passenger,1 ,15 or to maintain a boiler,1 but it has also been applied where, having been placed in a position of peril, he acts instinctively or according to his best judgment at the time. And this is true, although mature reflection might have enabled him to adopt a course which would have obviated the injury. The court will, in such cases, put itself in the position of the party from whom an instant decision is required, and will not undertake to speculate too closely at its leisure as to the means which would have been preferable. Thus recovery has been denied where the injury was received from a burning lamp thrown by defendant's servant in an endeavor to save himself, and from a pistol fired by one who was defending himself against the aggression of a third person.18 "That the duties and responsibilities of a person confronted with such a danger are different, and unlike those which follow his actions in performing the ordinary duties of life under other conditions, is a well-established principle of law. The rule applicable to such a condition is stated in Moak's Underhill on Torts 19 as follows: "The law presumes that the act or omission done or neglected under the influence of pressing danger was done or neglected involuntarily, and it is there said that this rule seems to be founded upon the maxim that self-preservation is the first law of nature, and that, where it is a question whether one of two men shall suffer,

inevitable in the sense that it must have happened. It is possible to eject a drunken passenger without injuring others. It was not unavoidable, for if the drunken passenger had not been admitted the injury would not have occurred. Feary v. Metropolitan St. Ry. Co., 162 Mo. 75, 62 S. W. 452.

14 Brown v. Kendall, 6 Cush. (Mass.) 292.

15 Spade v. Lynn & B. R. Co., supra.

16 Losee v. Buchanan, supra.

17 Donahue v. Kelly, 181 Pa. 93, 37 Atl. 186, 59 Am. St. Rep. 632. 18 Morris v. Platt, 32 Conn. 75.

19 Page 14.

each is justified in doing the best he can for himself."" 20 Under such circumstances the act of the defendant is not really voluntary in the true sense of the term, however it may have been regarded at common law.

But emphasis should be laid upon the requirement that the act of defendant should not be inherently wrongful, when considered as an act, and not merely from the standpoint of the result, nor should the method of its accomplishment be unlawful. Take the case of injuries received from the discharge of a gun. If the defendant has fired to protect himself, as we have seen, there can be no liability, though he wound a bystander; but the converse is true if he fire without justification, intending to kill A., but by mistake wound B., and it makes no difference that he may have exercised the greatest care imaginable not to injure any one but A.21 Again, the gun may have been lawfully discharged, as in hunting, and yet the circumstances may indicate a failure to observe that degree of care which an ordinarily careful man would have exercised.22

Based upon this principle are cases where the damage arises out of the maintenance of a nuisance.28 For example, the operation of a powder manufactory or magazine in a thickly populated district being unlawful in itself, one who is injured by an explosion may recover, without regard to the question of negligence.24 And for the same reason a similar result is reached where the action is against the owner

20 Laidlaw v. Sage, 158 N. Y. 73, 89, 52 N. E. 679, 44 L. R. A. 216. 21 Thus, where defendant unlawfully threw a stick at two boys and hit a third, the fact that the injury resulted to another than was intended will not relieve him from responsibility. Talmage v. Smith, 101 Mich. 370, 59 N. W. 656, 45 Am. St. Rep. 414. And the same is true where one of two persons, fighting, unintentionally strikes a third. James v. Campbell, 5 C. & P. 372.

22 Bullock v. Babcock, 3 Wend. (N. Y.) 391.

23 See infra, p. 557 et seq.

24 Reilly v. Erie R. Co., 177 N. Y. 547, 69 N. E. 1130, affirming 72 App. Div. 476, 76 N. Y. Supp. 620; HEEG v. LICHT, 80 N. Y. 579, 36 Am. Rep. 654, Chapin Cas. Torts, 377. And see infra, p. 558. The rule may also be applied to such cases as bulging walls. Simmons v. Everson, 124 N. Y. 319, 26 N. E. 911, 21 Am. St. Rep. 676.

of an animal which is of a ferocious species,25 or of a species not naturally ferocious, where the owner is aware of the vicious propensities of the particular animal.20

Another illustration of an act inherently unlawful is found in the case of trespass to land. If my cattle unlawfully enter upon my neighbor's close, my responsibility does not depend upon whether I have been careful or careless in keeping them.2 27 Sọ, too, if by a blast set off on my own land I cause earth or stone to be cast upon another's, the fact that I may have exercised the greatest care imaginable will not protect me.28

INTENT AND MOTIVE

18. To determine the effect to be given to condition of mind there will be considered

(a) The mental attitude of the party wronged; (b) The mental attitude of the wrongdoer.

Intent and Motive

It is necessary to point out the distinction between intent and motive. The former is purpose or object in the concrete the stretching out, such is the figure of the mind, towards the end desired; while the motive is that which inspires and causes that stretching out. Now, the intent may

25 Such as an elephant, FILBURN v. PEOPLE'S PALACE & AQUARIUM CO., L. R. 25 Q. B. D. 258, Chapin Cas. Torts, 330; a bear, Vredenburg v. Behan, 33 La. Ann. 627; or a buck deer in the autumn, Congress & E. Spring Co. v. Edgar, 99 U. S. 645, 25 L. Ed. 487. And see infra, p. 521.

28 As in the case of a cow, Coggswell v. Baldwin, 15 Vt. 404, 40 Am. Dec. 686; a horse, Reynolds v. Hussey, 64 N. H. 64, 5 Atl. 458; or a dog, Muller v. McKesson, 73 N. Y. 195, 29 Am. Rep. 123, where it was observed that, "when accustomed to bite persons, a dog is a public nuisance." And see infra, p. 521.

27 Lyons v. Merrick, 105 Mass. 71; Noyes v. Colby, 30 N. H. 143; Wood v. Snider, 187 N. Y. 28, 79 N. E. 858, 12 L. R. A. (N. S.) 912; Tonawanda R. Co. v. Munger, 5 Denio (N. Y.) 255, 49 Am. Dec. 239. And see infra, p. 347.

28 Hay v. Cohoes Co., 2 N. Y. 159, 15 Am. Dec. 279; Cary Bros. & Hannon v. Morrison, 129 Fed. 177, 63 C. C. A. 267, 65 L. R. A. 659. And see infra, p. 346.

be morally culpable, while the motive is good enough; the intent may be to inflict harm, while the motive is one of ordinary self-interest.29

Thus, suppose I go before a magistrate and charge A. with having committed larceny. My intent is to procure his arrest and punishment. My motive, however, may have been good, i. e., to bring to justice one whom I honestly believe to be a criminal; or it may have been bad, in that I sought to gratify a personal grudge. So, too, the critic who published a review, while it was his purpose to disseminate his views, may have been actuated either by a desire to enlighten the public or by express malevolence against the author.30

THE MENTAL ATTITUDE OF THE PARTY

WRONGED

19. In general, the mental attitude of the party wronged is immaterial.

It is evident that the intent of the party wronged can, in general, have no bearing upon his right to recover; though an exception must be made in cases of fraud, since, as will be seen hereafter, it is an essential ingredient of this tort that he who seeks relief must show that he believed and acted upon the representation that was made to him.

31

So, too, as to motive. Where a legal right of the injured party has been infringed, the law will not refuse him redress merely because he has resorted to litigation with a view to harassing his adversary, and not with the design of protecting himself. A court, it has been said, has "no power to deny to a party his legal right because it disapproves his motives for insisting upon it.” 82

29 Bigelow on Torts, p. 20.

80 See "Motive as an Element in Torts in the Common and in the Civil Law," by E. P. Walton, 22 Harv. Law Rev. 501.

81 See infra, p. 406.

32 Clinton v. Myers, 46 N. Y. 511, 520, 7 Am. Rep. 373. Here it was held that a riparian proprietor may insist upon his legal right to the natural flow of the stream at all times as against one who detains the water by means of a dam during autumn and spring,