In the subsequent discussion as to what will constitute "fault" (i. e., the fault which the foregoing authorities regard as generally a requisite element in an actionable tort), we are assuming the existence of damage. In other words, we assume that the defendant's conduct has caused to plaintiff damage of a kind that the law will notice, damage for which the law will afford redress whenever the person inflicting it can be deemed a tortfeasor. We are not concerned here to consider the exact nature of the damage which the law will notice. The two questions of damage and of responsibility for damage- (1) Has there been damage? (2) If so, was that damage tortiously inflicted? are entirely distinct from each other. 83

If the term tort is to be used only in the sense of fault, and cases of acting at peril, etc., are no longer to be grouped under tort, but are to be placed in the third class, how shall we define fault? What is the test of the fault which would then be requisite to constitute an actionable tort? 84

harm to the plaintiff. That is to say, liability for a tort is commonly based on the co-existence of two conditions: (a) damage suffered by the plaintiff from the act of the defendant; (b) wrongful intent or culpable negligence on the part of the defendant." SALMOND, TORTS, 4 ed., 8.

"Section 3. Absolute Liability.

"1. The rule that mens rea in one or other of its two forms — wrongful intent or negligence — is an essential condition of civil liability for a tort, is subject to important exceptions. These exceptional cases in which liability is independent of intention or negligence may be conveniently distinguished as cases of absolute liability. . . "All cases of absolute liability may be divided into three classes:

(a) Liability for inevitable accident;

(b) Liability for inevitable mistake;

...

(c) Vicarious liability for the wrongful acts of others." SALMOND, TORTS, 4 ed., 14-15.

83 See I SHEARMAN & REDFIELD, Negligence, 6 ed., § 4. Professor Wigmore, 8 HARV. L. REV. 203.

84 "To be of any service as a test of liability, fault must be used in its actual, its subjective meaning of some conduct repugnant to accepted moral or ethical ideals or some act or omission falling below the standard of conduct required by society of its members. It is possible to state all liabilities in terms of fault, to say that one is legally, if not morally or socially, in fault, wherever the law holds him liable. But this is reasoning in a vicious circle. It involves as the premise, the assumption of the very point in dispute, that legal liability cannot exist without fault. The reasoning is this, there can be no legal liability without fault, the defendant is liable, therefore he is at fault, if not actually at least legally. Not only is such reasoning vicious as reasoning, but, by confounding liability and fault, it destroys all value of fault as an element determinative

What conduct will constitute a primâ facie tort, i. e., a tort, unless a justification is made out? 85

Our description of the fault which is a requisite of "tort in the sense of fault" is — conduct which involves either culpable intention or culpable inadvertence.86

Assuming the above definition of fault, our definition of tort, so far as concerns the ethical quality of the defendant's conduct, closely resembles Mr. Austin's view. He says, in substance, that, to constitute a tort, there must be either culpable intention or culpable inadvertence.87

For a fuller definition, including the two elements of wrong and damage (at least something which the law will regard as damage), we should say:

There is a primâ facie tort (that is, a tort in the absence of special circumstances establishing a so-called justification):

If defendant by his conduct (other than mere breach of contract) (1) intentionally or negligently inflicts actual damage on plaintiff,88 or (2) intentionally infringes a right of plaintiff without causing actual pecuniary damage.89

of liability." Professor Bohlen, 59 U. PA. L. REV. 313. And compare BOHLEN, CASES ON TORTS, Preface, v.

85 When a defendant in an action of tort is said to have proved a justification, he has in reality proved, not that he has committed an excusable wrong, but that he has not committed any wrong at all. Speaking literally, "there is no justification for a tort. The so-called justification is an exceptional fact which shows that no tort was committed." Stevenson, V. C., in Booth v. Burgess, 72 N. J. Eq. 181, 188, 65 Atl. 226 (1906). Compare Prof. A. V. Dicey, quoted in 20 HARV. L. REV. 356.

86 In HEPBURN, CASES ON TORTS, Introduction, 21, 22, the learned editor divides torts into two classes: (1) "Torts through Acts of Absolute Liability; (2) Torts through Acts of Conditional Liability." (1) Includes "Trespasses and Absolute Torts other than Trespasses." (2) Includes "Torts through Negligence, and Torts through Act of Intentional Harm."

87 See ante, n. 72, references to AUSTIN, JURISPRUDENCE.

88 I. e., actual damage of a kind recoverable in a court of common law jurisdiction. 89 The intentional infringement of a right, though not causing actual pecuniary damage, may sometimes afford ground for an action of tort. The plaintiff recovers only nominal damages, and the real purpose of the suit is generally to establish his legal right. See MARKBY, ELEMENTS OF LAW, 3 ed., § 706, note 3, and § 762; HOLMES, COMMON LAW, 98, 153-54; POLLOCK, TORTS, 10 ed., 13-16.

"But this principle is not, as a rule, applicable to actions for negligence: which are not brought to establish a bare right, but to recover compensation for substantial injury." Bowen, L. J., in Brunsden v. Humphrey, 14 Q. B. Div. 141, 150 (1884). "In cases of negligence there is no such invasion of rights as to entitle a plaintiff to recover

That the intentional infliction of damage constitutes a primâ facie tort is a position strongly sustained by the following citations:

"At Common Law there was a cause of action whenever one person did damage to another wilfully and intentionally, and without just cause

"Now, intentionally to do that which is calculated in the ordinary course of events to damage, and which does, in fact, damage another in that person's property or trade, is actionable if done without just cause

"X, who intentionally causes damage to A, has primâ facie done an injury or wrong to A, and if X can show no legal justification for the damage he has thus intentionally done to A he is liable to an action by A.” 92

"It has been considered that, primâ facie, the intentional infliction of temporal damage is a cause of action, which, as a matter of substantive law, whatever may be the form of pleading, requires a justification if the defendant is to escape.' " 93

"It is submitted that the discussion would be materially simplified if it were understood that all damage wilfully done to one's neighbor is actionable unless it can be justified or excused." 94

"The wilful causing of damage to another by a positive act, . . . is a tort unless there was just cause for inflicting the damage.

995

at least nominal damages. . . ." Sheldon, J., in Sullivan v. Old Colony Street R., 200 Mass. 303, 308, 86 N. E. 511 (1908). One who unintentionally, though carelessly, interferes with plaintiff does not do so under an assertion of a right. It is generally held that negligent conduct is not actionable, unless it has occasioned actual damage. See SALMOND, TORTS, 4 ed., 186; POLLOCK, TORTS, 10 ed., 194; I SEDGWICK, DAMAGES, 9 ed., § 96 et seq.; 15 COL. L. REV. 8, 9; 20 HARV. L. REV. 262–63, 356; 2 AMES & SMITH, CASES ON TORTS, ed. 1909-10, chap. IV, § VII; 21 HALSBURY, LAWS OF ENGLAND, 481.

90 Bowen, L. J., Skinner v. Shew, [1893] 1 Ch. 413, 422.

91 Bowen, L. J., Mogul Steamship Co. v. McGregor, 23 Q. B. D. 598, 613 (1889).

92 Prof. A. V. Dicey, 18 L. QUart. Rev. 4.

93 Holmes, J., Aikens v. Wisconsin, 195 U. S. 194, 204 (1904). And see Judge Holmes, in 8 HARV. L. REV. 9.

94 POLLOCK, TORTS, 7 ed., 319. See also 22 L. QUART. REV. 118.

95 Professor Ames, 18 HARV. L. REV. 412.

"In our judgment the Common Law is coming, if it has not already come, to hold that a man who wilfully or negligently causes temporal damage of any kind is liable unless he can show justification or excuse. The real difficulty is not to find a verbal definition of tort in general, but to define the substantial principles of justification and excuse and the limits of their application." 26 L. QUART. RFv. 421.

Compare Stevenson, V. C., in Booth v. Burgess, 72 N. J. Eq. 181, 198, 65 Atl. 226 (1906).

As to the distinction between intent and motive, see the discussion in a former paper by the present writer.96

If the term tort is used to describe only cases of fault, will it include all cases of damage caused by negligence in the legal sense of that term?

Negligence circumstances

-

in the sense of failure to use due care under the generally implies fault on the part of the defend

ant. But there is an exceptional situation, where it is possible for a man to be held negligent in law, although personally he is not in fault.

The courts have established an arbitrary standard of care, an external standard, viz., the care which would be exercised under similar circumstances by an average reasonable man, a man of average prudence. If a man, without being non compos or without being subject to certain kinds of distinct incapacity, is yet below the average so that he cannot exercise the foresight and care of an average reasonable man, he is held liable for damage due to his failure to exercise such foresight and care, although he has, in fact, done the best he knew how. The courts "decline to take his personal equation into account"; in other words, the law "leaves his idiosyncrasies out of account." This view is fully stated in Holmes on the Common Law.97 "The rule," says Judge Holmes,98 "that the law does, in general, determine liability by blameworthiness,

96 "Crucial Issues in Labor Litigation," 20 HARV. L. REV. 253, 256-59. In one "specific tort," Malicious Prosecution, proof of intentional infliction of damage is not enough to make out a prima facie case. Plaintiff must go further and prove bad motive on defendant's part. As to the reason for this exceptional rule, see Lord Herschell, Allen v. Flood, [1898] A. C. 1, 125. Whether an act, otherwise lawful, becomes actionable by proceeding from a bad motive, is a subject much discussed of late years. The question is sometimes stated in the following form: Whether the existence of bad motive will destroy an otherwise sufficient justification, grounded on self-interest?

See elaborate discussion by Professor Ames, in 18 Harv. L. Rev. 411-22: "How far an act may be a Tort because of the Wrongful Motive of the Actor." Compare views expressed by the present writer, more favorable to defendants, in 20 HARV. L. REV. 453-55.

In 27 ENCYCL. BRIT., 11 ed., 65, Sir F. Pollock, as to the general proposition that motive is immaterial, says: "Only two exceptions are known to the present writer malicious prosecution, and the misuse of a" (conditionally?) "privileged occasion." 97 Pages 108-11. See also Holmes, J., in Comm. v. Pierce, 138 Mass. 165, 176 (1884); HOLLAND, JURISPRUDENCE, 8 ed., 98-101; I STREET, FOUNDATIONS OF LEGAL LIABILITY, 96.

98 THE COMMON LAW, 108.

is subject to the limitation that minute differences of character are not allowed for."

The decisions in an infinite majority of the cases where men are held liable for negligence are undoubtedly based on personal shortcoming, i. e., actual fault on the part of the defendant. The instances are believed to be very rare where a man who had exercised all the care of which he was capable has been found negligent on the ground that he did not exercise an amount of care which he was incapable of exercising; in other words, that he was unable to attain the external standard established by the law.99 We think it best that all cases of liability for negligence, in the legal sense, should be classed under tort, with the accompanying explanation that, in a few exceptional cases placed under this head, liability is imposed in the absence of personal fault.

(To be continued.)

CAMBRIDGE, MASS.

Jeremiah Smith.

99 The record, as usually made up, would not show when liability was imposed upon this ground.