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.2o

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,31 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.

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."

99 32

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.

31 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,

THE MENTAL ATTITUDE OF THE WRONGDOER

20. There will be considered here

(a) The intent of the wrongdoer

(1) As to the nature and accomplishment of the act; (2) As to the result.

(b) The motive of the wrongdoer

(1) Where the act is inherently lawful;

(2) Where the act is inherently unlawful;

(3) Where lawfulness is dependent upon motive.

INTENT OF WRONGDOER-NATURE AND AC

COMPLISHMENT OF ACT

21. Absence of a design to commit an act tortious in its nature will in general constitute no defense.

It has already been seen that in the case of acts truly involuntary the common law gave no cause of action, a doctrine which has now been extended to cases of misadventure and acts committed under an apprehension of impending peril. Bearing in mind the sense in which the word "voluntary" is now used, the rule can be laid down that the mere absence of a design to commit a wrong will not, in general, constitute an excuse. Once the intentional doing of an act has been established in assumed exercise of a right, the actor must likewise assume the burden of proving that such right exists in him. The auctioneer or broker who sells goods under the instructions of a principal must submit to having his right tested by that of the principal. True, he may not have intended to sell property which did not belong to such principal, yet in fact if the article belonged to a third party, from whom the goods were stolen, the fact remains that he has intentionally exercised acts of dominion, and, though morally innocent, he will be legally culpable. If I enter upon your

33

thus insuring an equal flow. The mere fact that he does so insist from malicious motives is immaterial.

33 SWIM v. WILSON, 90 Cal. 126, 27 Pac. 33, 13 L. R. A. 605, 25

land, though not meaning to cross the boundary line between our premises, I will be none the less guilty of trespass. One is "bound in law to know the limits of his possessions." 34 Indeed, it has been said that "the pretended ownership aggravates the wrong." 35 If a newspaper publish a defamatory article concerning A., it is no excuse that the writer intended to apply the words to B.; or if the proprietor of a place of public amusement mean to eject C., but by mistake attempt to eject D.37 Indeed, actual intent on the part of the individual held accountable may in fact be absolutely lacking, as where a master is held responsible for the wrong of a servant committed by the latter within the course of his employment.88 But, though the intent to commit a technical wrong may be immaterial,3 an intent of a different sort may be an essential Am. St. Rep. 110, Chapin Cas. Torts, 189; Robinson v. Bird, 158 Mass. 357, 33 N. E. 391, 35 Am. St. Rep. 495; Hoffman v. Carow, 22 Wend. (N. Y.) 285. And see infra, p. 377.

34 Blaen Avon Coal Co. v. McCulloh, 59 Md. 403, 417, 43 Am. Rep. 560; Maye v. Yappen, 23 Cal. 306; Pearson v. Inlow, 20 Mo. 322, 64 Am. Dec. 189; Wood v. New York Cent. & H. R. R. Co., 184 N. Y. 290, 77 N. E. 27; McCloskey v. Powell, 123 Pa. 62, 16 Atl. 420, 10 Am. St. Rep. 512; Perry v. Jefferies, 61 S. C. 292, 39 S. E. 515. 35 DOUGHERTY v. STEPP, 17 N. C. 371, Chapin Cas. Torts, 179, per Ruffin, C. J. This, however, has not met with universal acquiescence, and some of the courts have held that the honesty of the mistake may bear upon the quantum of damages. Thus, if trees are cut in good faith, the measure of damages is their value as standing trees, and not their value as logs. Clark v. Holdridge, 12 App. Div. 613, 43 N. Y. Supp. 115. Contra, McCloskey v. Powell, 123 Pa. 62, 16 Atl. 420, 10 Am. St. Rep. 512, where a statutory penalty of treble damages was allowed.

36 Morey v. Morning Journal Ass'n, 123 N. Y. 207, 25 N. E. 161, 9 L. R. A. 621, 20 Am. St. Rep. 730; Griebel v. Rochester Printing Co., 60 Hun, 319, 14 N. Y. Supp. 848; Taylor v. Hearst, 107 Cal. 262, 40 Pac. 392.

37 Davis v. Tacoma Ry. & Power Co., 35 Wash. 203, 77 Pac. 209, 66 L. R. A. 802. Here defendant's employé had been informed that a woman of the criminal class had entered a public park which the defendant owned. He mistook plaintiff for the woman and ordered her to leave. Discovering his mistake almost immediately, he apologized to her and called the attention of defendant's manager to the mistake, when the latter likewise apologized.

38 See infra, p. 209.

39 As where cattle belonging to plaintiff became mingled with

element of certain wrongs. Take as an illustration the tort conversion. The exercise of dominion over the personal property of another may or may not give a cause of action, dependent upon whether the doer has acted in subordination to or in denial of the rights of the true owner. So one who sues for the tort fraud must prove that the defendant had made a false representation with the intent that it be acted upon, though this intent is regarded as established when the attending circumstances justify the inference.13 Thus, false statements regarding financial condition made to a mercantile agency will be regarded as having been made for the purpose of inducing subscribers to extend credit. The distinction between intent and motive is strongly apparent in cases of fraud, since, though the intent must be to deceive, the

42

defendant's cattle, while the latter were being driven along the highway, and defendant, after rejecting all the cattle which he believed did not belong to him, nevertheless retained and slaughtered under a mistake cattle belonging to the plaintiff, his innocence will not protect him. Dexter v. Cole, 6 Wis. 319, 70 Am. Dec. 465. 40 See infra, p. 370.

41 See infra, p. 371. Though this point will be discussed later, two cases may be referred to here as illustrating the difference between acting in defiance of the true owner's rights and acting in subordination to them. In Hobart v. Hagget, 12 Me. 67, 28 Am. Dec. 159, defendant purchased an ox belonging to plaintiff and took from plaintiff's possession the ox which he supposed he had purchased. As a matter of fact plaintiff did not intend to sell that particular ox, but supposed that he was selling another. The minds of the parties did not meet, and therefore defendant had no title to the ox. But he nevertheless took it in the assertion of a right in himself. In Frome v. Dennis, 45 N. J. Law, 515, plaintiff had left his plow on C.'s land with C.'s consent. Later the farm passed into the possession of H., and defendant, supposing the plow belonged to H., borrowed it from him and later returned it, still supposing it to be H.'s property. Whatever defendant did here was without reference to

and was in subordination of the rights of the true owner.

42 See infra, p. 404. Buschman v. Codd, 52 Md. 202; Hunnewell v. Duxbury, 154 Mass. 286, 28 N. E. 267, 13 L. R. A. 733; Brackett v. Griswold, 112 N. Y. 454, 20 N. E. 376; McAleer v. McMurray, 58 Pa. 126.

48 Collins v. Denison, 12 Metc. (Mass.) 549.

44 Tindle v. Birkett, 171 N. Y. 520, 64 N. E. 210, 89 Am. St. Rep. 822; Genesee Co. Sav. Bank v. Michigan Barge Co., 52 Mich. 164, 438, 17 N. W. 790, 18 N. W. 206. And see infra, p. 404.

motive, whether expectation of advantage to the party himself, or ill will towards the other, or good will towards a third party, will be immaterial.45

INTENT OF WRONGDOER AS TO RESULT

22. Responsibility for the result of the wrongdoer's act or omission does not depend on whether he intended to produce it.

46

Later there will be discussed the principles applied to determine the legal existence of cause and effect. Suffice it to say that it is not essential that the wrongdoer should have foreseen the specific consequences which actually occurred. Instances are almost legion. Thus, where a municipality negligently permitted a board walk to fall into disrepair, it was held responsible for injuries received by one who tripped over the loose end of a board raised by the act of another coming in an opposite direction, who stepped on the other end. In another case defendant sold ball cartridges to children aged 10 and 12. The children left a pistol loaded with the cartridges on the floor of their home, where a younger brother of 6 picked it up and discharged it, inflicting injuries, from which death resulted. Again, a railroad is responsible where one of its trains, negligently managed, struck a third party, who at the time was carrying a box of tools, one of which was thrown to some distance, striking the plaintiff."

48

45 Cowley v. Smyth, 46 N. J. Law, 380, 50 Am. Rep. 432. "It is fraud in law if a party makes representations which he knows to be false and injury ensues, although the motive from which the representations proceeded may not have been bad; the person who makes such representations is responsible for the consequences." Foster v. Charles, 7 Bing. 105, 107, 8 L. J. C. P. O. S. 118, 31 Rev. Rep. 446, 20 E. C. L. 55, per Tindal, C. J.

46 See infra, pp. 76-104.

47 City of Dixon v. Scott, 181 Ill. 116, 54 N. E. 897.

48 Binford v. Johnston, 82 Ind. 426, 42 Am. Rep. 508.

49 Hammill v. Pennsylvania R. Co., 56 N. J. Law, 370, 29 Atl. 151, 24 L. R. A. 531.