In so-called cases of extra-hazardous user, a man is said to act at his peril, and is held absolutely liable though without fault. By "acting at peril" is here meant

"that there is some act which the law does not forbid, some act from which there is no primary duty or obligation to abstain, but for which, if a man does it and harm ensues, he will be liable to make compensation." 33

"The law . . . considers, not that the act is so dangerous as to be negligent and wrongful, but that it is so dangerous as to be allowable only on the terms of insuring the public against harm."34

The modern doctrine that in certain exceptional cases a man acts at peril is a survival of the time when all a man's acts were done at his peril.35

Why should the law, at the present day, maintain that there is any extra-hazardous class of acts which are performable only at the peril of the doer? The following explanations have been suggested:

"As a matter of history, such cases cannot easily be referred to any definite principle. But the ground on which a rule of strict obligation has been maintained and consolidated by modern authorities is the magnitude of the danger, coupled with the difficulty of proving negligence as the specific cause in the event of the danger having ripened into actual harm." 36

"The possibility of a great danger has the same effect as the probability of a less one, and the law throws the risk of the venture on the person who introduces the peril into the community.'

99 37

In Salmond on Jurisprudence,38 it is said (as to some "exceptionally dangerous forms of activity"):

ground of liability. But it was supposed so by many lawyers down to recent times, the reason lying in a history of archaic ideas too long to be traced here." Sir F. Pollock, 27 ENCYCL. BRITANNICA, II ed., 65.

33 MARKBY, ELEMENTS OF LAW, 3 ed., § 693.

34 SALMOND, JURISPRUDENCE, ed. 1902, 457.

35 Mr. Holdsworth, in 2 HISTORY OF ENGLISH LAW, 42, speaks of "the dominant conception of the Anglo-Saxon law the idea that a man acts at his peril"; and again, in vol. 3, 303-04, "the leading principle of the medieval common law that a man acts at his peril." Compare vol. 3, 299. See also POLLOCK, TORTS, 10 ed., 15. “The archaic law of injuries is a law of absolute liability for the direct consequences of a man's acts, tempered only by partial exceptions in the hardest cases."

36 POLLOCK, TORTS, 10 ed., 505.

37 HOLMES, COMMON LAW, 154, 155.

38 Ed. 1902, 456.

"These may well be tolerated only on the condition of making compensation to all who suffer from them, irrespective altogether of any question of negligence." 39

What is the present scope, or application, of this common-law doctrine? Which way are courts now tending-to extend it or to restrict it? How far, if at all, will the decisions of courts be influenced by recent legislation, which brings about, as to large classes of persons, results absolutely incongruous with those reached under the modern common law as to persons not affected by such statutes? What sort of cases are now usually held to fall under this head of acting at peril, or extra-hazardous user?

No attempt is here made to give an exhaustive enumeration of all possible cases of acting at peril.40

We only call attention to some prominent instances, stated in very general terms.

1. Absolute liability of the owner of certain animals for damage done by their straying from his land onto a neighbor's land. This applies to classes of animals which, if not restrained, are liable to stray from the owner's land to his neighbor's land and are likely to do damage there. The doctrine of absolute liability in such cases is a survival of the time when every man was liable for all damage

39 It has been suggested that these exceptional cases of absolute liability may be explained as "being based on a conclusive presumption of negligence." But the phrase "conclusive presumption," when employed in this connection, is objectionable. It is used to conceal the fact that the courts are laying down a rule of substantive law under the guise of a rule of evidence. In the words of Professor Williston (24 HARV. L. REV. 425), a conclusive presumption "is a rule of substantive law masquerading as a rule of evidence."

For criticism of the term "conclusive presumption" and of its use in the above manner, see I AUSTIN, JUR., 3 ed., 508, 509, 510; GRAY, NATURE AND SOURCES OF THE LAW, § 228; 4 Wigmore, EvidENCE, § 2492; 2 CHAMBERLAYNE, MODERN LAW OF EVIDENCE, §§ 1145, 1146, 1149, 1160.

40 It must be remembered that we are here speaking of cases of accident as distinguished from mistake. The term "acting at peril" may also be used in reference to cases of mistake, e. g., intermeddling with tangible objects of property under a bonâ fide and non-negligent mistake as to title (see discussion, ante). So as to vicarious liability; a master may be said to act at peril when he carefully selects and directs a servant. He may be liable for a tort of the servant when acting within the scope of his engagement, though in violation of his orders.

are

We do not here discuss "a principle of limited application that 'unlawful' acts signifying an illegality, usually statutory, independent of the question at issue done at peril." See Professor Wigmore, 8 HARV. L. Rev. 388. As to breach of statutory duties, see also SALMOND, TORTS, 4 ed., 557, paragraph 5.

done by him or his property, though entirely without his fault.“ The doctrine does not prevail in many of our newer states. It is to-day so exceptional that it does not furnish a sufficient basis upon which to argue from analogy; and several American courts criticise the attempt of Blackburn, J., to thus use it in Fletcher v. Rylands.

2. Absolute liability of the owner of certain animals for damage done by them other than trespass to land. This applies in the two following cases:

(a) If the animal belongs to a class which the court regards as having a natural propensity to do the particular kind of damage in question.

(b) If the particular animal, though belonging to a class not naturally or usually so inclined, has a special propensity to do this kind of damage, and the owner is aware of the existence of such propensity.

Until quite recently it was the general opinion that in both the above cases the owner was liable irrespective of negligence and that proof of care on his part would not exonerate him. We think that this view is still supported by the weight of authority, especially by decided cases. But the opposite view is supported, at least as a question of principle, by the high authority of Judge Cooley, Dr. Bishop, and Mr. Beven."

43

3. Absolute liability in case of blasting, when substances are thereby thrown on the land of plaintiff.

In such a case the great weight of authority imposes absolute liability.45

41 See SALMOND, JURISPRUDENCE, ed. 1902, 464.

42 See Doe, J., 53 N. H. 442, 449-50. Beasley, C. J., 38 N. J. L. 339, 341-42 (1876); Earl, C., 51 N. Y. 476, 483 (1873).

43 See SALMOND, TORTS, 4 ed., 428; POLLOCK, TORTS, 10 ed., 520-21; CLERK & LINDSELL, TORTS, 6 ed., 479–80, 487-89; HOLMES, COMMON LAW, 154.

44 See COOLEY, TORTS, 3 ed., 696-97, 706-08; BISHOP, NON-CONTRACT LAW, §§ 1225, 1230; Mr. Beven, 22 HARV. L. Rev. 468, 478, 483-84. See also De Gray v. Murray, 69 N. J. L. 458, 55 Atl. 237 (1903). And compare Worthen v. Love, 60 Vt. 285, 14 Atl. 461 (1888); Hayes v. Smith, 62 Ohio St. 161, 182, 56 N. E. 879 (1900); Fake v. Addicks, 45 Minn. 37, 38, 47 N. W. 450 (1890).

45 COOLEY, TORTS, 2 ed., 392; BISHOP, NON-CONTRACT LAW, § 831. For a case which does not go to this extent, see Klepsch v. Donald, 4 Wash. 436, 30 Pac. 991 (1892), and 8 Wash. 162, 35 Pac. 621 (1894).

We do not consider here whether the throwing of substances upon plaintiff's land is the only result of blasting for which there is absolute liability.

4. Absolute liability for excavating in one's own land, with the result of subsidence in the surface of another's land, or of soil falling away from another's land.

This topic is sometimes indexed under such titles as "Withdrawal of support for land," "Right of support for land," "Right to support of soil from soil," "Liability for removal of lateral or subjacent support of land in its natural condition." "Land" here means land without any buildings upon it, or where the presence of buildings did not contribute to produce the subsidence or falling away.

In an action for causing the fall of buildings, when the land would not have given way but for the weight put upon it by the buildings, actual negligence by the excavator must be proved. But in judicial opinions and in textbooks it has almost universally been assumed that liability for excavation causing the fall of land which has no building upon it exists irrespective of negligence and that proof of care on the part of the excavator will not exonerate him. This view is, however, controverted by Mr. Salmond, who says:

46

"There is no sufficient reason for supposing that the infringement of a right of support is any exception to the general principle that liability for a tort depends on the existence of wrongful intent or culpable negligence."

An opinion of Mr. Salmond's is always entitled to consideration. But we believe that to-day the above rule of absolute liability for damage to land by excavation would be applied in most commonlaw jurisdictions.47

45 TORTS, 4 ed., 279.

47 It must be admitted that, until a comparatively recent date, the precise question was hardly ever the subject of express adjudication. In a majority of the cases the precise point in judgment was "the extent of the right where buildings had been erected on the land for which support was claimed." See Monographic Note, in 33 Am. St. Rep. 446 et seq., especially p. 447. But in these cases, "complicated by the existence of artificial structures," judges have repeatedly said that negligence was not essential to an action when the land which gave way had no buildings upon it; and this proposition has been stated by text-writers as undoubted law. And there are now American cases where this point has been directly decided. See Foley v. Wyeth, 2 Allen (Mass.) 131 (1861); Mosier v. Oregon Nav. Co., 39 Ore. 256, 61 Pac. 453 (1901);

5. Absolute liability for defamatory statements actually or theoretically damaging, published on an unprivileged occasion, and not justifiable on the ground of truth.

Defendant is not exonerated by proof that the statements were published under a non-negligent but mistaken belief, either (1) that facts existed creating a privilege, or (2) that the statements were true.48

6. Absolute liability in an action for slander (disparagement) of title, brought against a stranger.

Defendant is not exonerated by proof that he was acting under a non-negligent but mistaken belief in the truth of his statement.49

As to the three following topics, there has been much discussion, and some conflict, as to whether absolute liability should be imposed for damage, irrespective of negligence.

7. Use of Fire. 8. Manufacture and Storage of Dangerous Explosives. 9. Collecting and Keeping Water in a Reservoir.

The discussion has occupied more space in the reports than that Nichols v. City of Duluth, 40 Minn. 389, 42 N. W. 84 (1889); Schultz v. Bower, 57 Minn. 493, 496, 59 N. W. 631 (1894); Matulys v. Philadelphia Coal and Iron Co., 201 Pa. St. 70, 76, 50 Atl. 823 (1902); Richardson v. Vermont Central R. Co., 25 Vt. 465, 471 (1853).

In the leading case of Humphries v. Brogden, 12 Q. B. 739 (1850), the court, in allowing an action for withdrawal of subjacent support, relied largely upon the analogy of liability for withdrawal of lateral support, and expressly said (p. 757) "that the present action is maintainable notwithstanding the negativing of negligence in the working of the mines."

There are several English cases which carry the rule of liability without negligence so far as to apply it to buildings, in cases where the presence of the building did not contribute to the giving way of the land. They hold that, in an action for causing soil to sink which would have sunk if there had been no building upon it, the damages recovered may include the harm to the buildings also. And they distinctly hold that proof of negligence is not requisite for that purpose. See Haines v. Roberts, 7 El. & Bl. 625 (1857), affirming 6 El. & Bl. 643 (1856); Stroyan v. Knowles, 6 Hurl. & Norman 454 (1861); Brown v. Robins, 4 Hurl. & Norman 186 (1859); Hunt v. Peake, N. V. R. Johnson, Ch. 705 (1860).

In Massachusetts the unqualified rule of liability in the absence of negligence "is limited to injuries caused to the land itself, and does not afford relief for damages by the same means to artificial structures." In the latter case there must be proof of actual negligence. Gilmore v. Driscoll, 122 Mass. 199 (1877). But in this very case plaintiff was held entitled to recover damages occasioned "by loss of and injury to her soil alone," although there was no proof of negligence. See Gray, C. J., pp. 207-08. 48 See ante, p. 320.

49 See ante, p. 320, as to action against a rival claimant.