HARVARD

LAW REVIEW.

VOL. XXV.

FEBRUARY, 1912.

No. 4.

IT

LEGAL CAUSE IN ACTIONS OF TORT.

[Concluded.]

T remains to consider another argument in favor of the alleged rule of non-liability for improbable consequences, and one which has had great influence.

1

It is said that, even if the rule, that probability is the legal test of the existence of causal relation, is open to serious objection, it is nevertheless the only practicable working test. The law must adopt some test; and this is asserted to be less objectionable than any other which has been, or can be, suggested.2 And here it will be urged that our argument against the alleged rule is an instance of petitio principii. We have been assuming that the alleged rule, if applicable for any purpose, can be so only as an arbitrary rule restricting, or preventing, liability in cases where it has already been found that the causal relation does, as matter of fact, exist. But it will be said that this assumption begs the question. It will be contended that the alleged rule is to be applied as an absolute legal test in solving the primary inquiry whether the causal relation does or does not exist.3 If a certain result would antecedently have been improbable, then it will be said that it must be conclusively

1 See "third" position, ante, 25 HARV. L. REV. 248.

2 “. . . the only test left to resort to, a test which, though approved neither by logic nor justice, is yet better than none, better than to admit a limitless liability for all consequences of acts . . .” See Terry, Leading Principles of Anglo-American Law, § 410, where this language is used in reference to a somewhat different topic. • See Watson, Damages for Personal Injuries, § 142.

deemed impossible; in other words, the law will never, no matter how strong the proof may be, hold that defendant's tort actually caused plaintiff's damage, if such a result antecedently was improbable.

So far as the question whether the plaintiff's damage was in reality caused by the defendant's tort is one of fact, it would seem that the tribunal passing upon it should not be influenced by considerations of policy or expediency. If the court is to give the jury a definition of "legal cause" to be applied in solving the question of fact, that definition should not arbitrarily give artificial weight to any one particular circumstance, such as probability or improbability. Probability should not be made an absolute legal test of the existence of causal relation.

But some advocates of the rule we are combating appear to think that the choice is between adopting their rule or having no rule at all. They say that the law ought to lay down some definition or test of causation. Then they, in effect, take the position that no other practicable rule than this can be laid down. Hence they conclude that if their rule is rejected, defendants will be left at the mercy of juries. There must be an end somewhere to liability.5 If you reject the rule of non-liability for improbable consequences, what definite rule will you substitute for it; what other stopping place is there; what practical check upon the caprice of jurors?

Here it should be said that some jurists are so much impressed with the danger of submitting to a jury any question connected with causation, that they are inclined to make the method of deciding questions of causation an exception to the methods generally prevailing as to other topics. They think that even questions of fact arising under any definition of causation must be decided solely by the judge and never submitted to the jury. They would say that "although a question of fact, it is one for the court to

tible,

"..

it is absolutely the only rule of which the subject in its nature is suscepWatson, Damages for Personal Injuries, § 145.

See Salmond, Jurisprudence, ed. 1902, 478; Terry, Leading Principles of AngloAmerican Law, § 528.

• Mr. Sedgwick, in controverting the position that the degree of fault should govern the amount of remuneration, adverts to the danger that the courts "in despair of reducing the subject to principle," "will throw the responsibility of the matter on the jury, leaving everything to their vague, fluctuating, and all but uncontrolled discretion." I Sedgwick, Damages, 6 ed., 129.

determine." Thus in Hobbs v. L. & S. W. Ry. Co.,8 Blackburn, J., said:

"I do not think that the question of remoteness ought ever to be left to a jury; that would be in effect to say that there shall be no such rule as to damages being too remote; and it would be highly dangerous if it was to be left generally to the jury to say whether the damage was too remote or not."

This view simply amounts to establishing an arbitrary exception, grounded on distrust of jurors. We can see no sufficient reason for such a departure from legal analogies. If the methods of decision now prevailing as to other topics are followed here, then no definition of legal cause, no test of "remoteness," can be given which will not result in submitting most close questions of causation to a jury. The very test we have been specially discussing, the test of probability or improbability, will present a question for the jury in all doubtful cases. Any legal definition of causation must raise the question whether all the requirements of the definition are found to be present in the particular case. No sound principle can be laid down by which the judge can always determine this question without infringing on the province of the jury.

Engelhart v. Farrant and Co. was an action for negligence. The County Court Judge, who tried the case without a jury, found for plaintiff. The Court of Appeal said, in substance: It is a question of fact whether certain negligence was "an effective cause" of the damage. If there were any real doubt as to this and the trial had been before a jury, this question must have been left to the jury. The Court of Appeal has power to draw obvious inferences of fact, and to exercise in this case the functions of a jury. The Court of Appeal finds no error in the decision of the County Court Judge upon this question of fact; and refuses to reverse the judgment.

Suppose, for the sake of argument, that there are only two alternatives: One, to adopt the test of probability; the other, to regard the question of the existence of causal relation as a pure question of fact; to be submitted by the judge to the jury without any explanation as to the meaning or requisites of the term "legal

7 See Clerk & Lindsell, Torts, 5 ed., 146, as to "remoteness.' And cf. Ladd, J., in Gilman v. Noyes, 57 N. H. 627, 633–635 (1876); 1 Sutherland, Damages, 3 ed., § 16. 8 L. R. 10 Q. B. 111, 122 (1875). [1897] 1 Q. B. 240.

cause," without giving them any chart or compass to go by. Does the adoption of the latter view confer upon the jury absolute and unrestrained power over the pocket of the defendant? Anyone who gives an affirmative answer to this inquiry overestimates the power of the jury and ignores the functions of the judge. Indeed the legal doctrines as to this matter are so elementary that the following statement of them may seem unnecessary.

Even though it be assumed that the question of the existence of causal relation is one of fact for the jury, yet this proposition "is necessarily subject to the limitation affecting the submission of all questions of fact to the jury: that if on the evidence reasonable men can come to only one conclusion, there is no question for their [the jury's] decision."10 The law does not place in the hands of the jurors power to decide that the causal relation may be inferred from any state of facts whatever."1

Before the question of causation can be submitted to the jury, there is a preliminary question to be decided by the judge; namely whether upon the evidence twelve honest men can reasonably find the existence of the causal relation. It is for the judge to say whether the jury can reasonably so find; and then, if he decides in the affirmative, it will be for the jury to say whether they do so find. The judge has to say whether on the evidence causal relation may be reasonably inferred; the jurors have to say whether from the evidence, if submitted to them, the causal relation is inferred by them.12 The question of causation will not get to the jury at all, unless the judge thinks that twelve men can reasonably find that the defendant's tort was, at the moment of the happening of the damage, a (continuing efficient) cause of the damage and not a mere antecedent fact. This power of the judge, properly exercised, materially lessens the danger of an unjust result as to causation. And it is especially important in cases where the commission of the tort is remote in space or time from the happening of the damage.13

10 Parsons, J., in McGill v. Maine & New Hampshire Granite Co., 70 N. H. 125, 129, 46 Atl. 684, 686 (1899).

11 Cf. Lord Cairns, in Metropolitan Ry. Co. v. Jackson, 3 App. Cas. 193, 197 (1877). See Watson, Damages for Personal Injuries, §§ 170, 175.

12 Salmond, Torts, 2 ed., 110-111, 29; Terry, Leading Principles of Anglo-American Law, § 72.

13 See Bishop, Non-Contract Law, §§ 44, 41; Mr. Labatt in 33 Can. L. J. 718, 721.

If the judge thinks that there is no reasonable evidence to justify a finding of causal relation, he will not submit the case to the jury.14 Conversely, if the judge thinks that the jury cannot reasonably fail to find the existence of causal relation, he can direct a verdict for the plaintiff, so far as this question of causation is concerned.

But while the above methods of procedure have the effect of narrowing the functions of the jury, yet it may be said that the result is simply to substitute uncertain and varying decisions of judges for similar decisions of jurors; and that in both cases it is equally impossible to foretell either the result or the grounds upon which the result will be reached.

Experience furnishes at least a partial answer to this objection. The decisions of judges as to whether to submit cases to juries, even though the judge is to be regarded as thus passing upon a question of fact, nevertheless in time constitute a set of precedents, having great and frequently decisive weight in later cases. Whether this effect is produced rightly or wrongly, there can be no doubt that it is produced.15 The body of precedent that will thus be formed on the subject of causation may not be so large, nor carry so much weight, as the body of precedent that has already been formed on the question of the existence of negligence. But there certainly will be precedents as to causation, and the establishment of such precedents must always have a tendency "to narrow the field of uncertainty."16 There can be no precedents for the verdicts of juries.17 But there may be precedents upon the duty of judges to submit cases to juries.18

14 See Terry, Leading Principles of Anglo-American Law, § 550.

15 Sir William Markby in 2 L. Mag. & Rev., 4th Series, 318, 322-324, 330-331; Holmes, Common Law, 120-129; Professor E. R. Thayer in 5 HARV. L. REV. 190193; Terry, Leading Principles of Anglo-American Law, §§ 75, 195, 559.

16 See Holmes, Common Law, 127.

17 "A second incidental advantage of trial by jury is connected with this: it decides cases without establishing precedents." Sir J. F. Stephen, General View of the Criminal Law of England, 1 ed., 208.

18 Some decisions sustaining a demurrer to a declaration, and thus refusing to submit the question of causative relation to a jury, are very unsatisfactory. The judge sometimes seems to consider the case as if the question were, whether the judge, if himself a juror, would find for the plaintiff upon proof of the facts stated in the declaration. But the real question is, whether, upon any state of facts provable under the declaration, a jury would be at liberty to find for plaintiff. Sustaining the demurrer is, in effect, a decision that the declaration discloses no ground upon which a jury could reasonably find that causal relation existed.