« 이전계속 »
sions. It is not what the student believes should be threshed out at the beginning of but why he believes it and how he applies the first year, so that no matter how much his belief that is of primary importance. the various instructors in the school should Omissions are constantly called causes in
differ as to the minutiae of interpretation the same way that acts are. Yet if by cause of the terms, or even as to fundamental conis meant that which produces a change, or cepts, the student has already in his first starts a force, or creates something which half-year acquired a basis for fruitful diswas non-existent before, or determines ac- cussion. tively the direction and scope of a force or
This of course presupposes that the situation, then an omission cannot possibly teacher of legal liability is not trying to esbe a cause. For a failure to do never starts tablish a terminology which is his termina force; it never changes anything actively; ology. That would be futile and foolish. because nothing is done. Where there has The instructor is interested, not in making been no activity, no releasing of forces, no the student acquire a term or definition but changing of situations, then the only thing in making the student's mind function by we can see or talk about is the continuance drawing distinctions between the various of an activity or force or pre-existing sit- definitions of a word or fact. Definitions uation and the failure to change this. By are of importance as points of departure an act something is started; by an omission and not as resting places. If the definition something is not stopped. This is quite ob- which the student finally acquires grows vious, yet it is difficult to get the student to out of a consideration of many and diverse see that the failure to do, nonfeasance, is variations of this definition, it will be to never the same thing as the doing, feasance him not a yardstick to be used in an arbior misfeasance, although compensation for trary fashion for measurement purposes, injury may be exacted from one who has but a standard for the guidance of his judgacted or failed to act.
ment in new situations. “The mark of his The discussion of the nature of a cause (the student's) lawyerlike quality will be is of great importance. In the law of torts, his ability to discern the legal significance crimes, damages and agency one
con- and legal possibilities of a new set of stantly meeting with instructions to juries
facts."10 The function of a legal definition which have to do with the maxim "causa is to aid the student in applying his knowlmaxima non remota spectatur," with defi- i edge to a new set of facts. nitions of proximate and remote causes, No fact, proposition, situation or life exwith distinctions between direct and conse- ists by itself. Things are connected and quential damage, and with the application inter-related. As Bishop Butler long ago of the rule that a proximate cause is that said; “When 1 thump the table, I jar the which leads to natural and probable conse- stars.” But for practical purposes the lawquences. This terminology must be grap- yer is concerned only with the facts immepled with and understood at the very out- diately surrounding the activities of his set of the student's legal career, or it must
client and those whom his client is suing or be constantly reiterated in every
course defending against. Somewhere within the where such language is used. There is, of
universal chain of cause and consequence course, merit in the repetition of ideas when there must be a practical starting and stopthese ideas naturally crop up during dis- ping place so far as the specific case before cussion in particular classes. But this rep- the lawyer is concerned. To And this place etition value is counter-balanced by the is the function of the principle of proxiamount of time the development of the idea mate causation. In discussing this principle by the dialectic method consumes, and it is
(10) E. R. Thayer, Law Schools and Bar Exsubmitted that such general terminology
aminations, Proceedings, 1913.
the student is given an indication of the lim- , the meaning of their own phrases." The
11 its of his field of inquiry. He is made to reason for this is that the courts see that though the chain of cause and con- busy that they cannot take the time to ansequence stretches back to the beginning of alyze the language they are using but are time and forward into eternity, he is only blindly
blindly following precedent. Certain concerned with the particular act of the per- phrases have been used before, so they use son upon whom he is trying to fasten a li- them again. The doctrine of forseeableability and the specific consequence which ness, the language to the effect that a man is the injury done to his client. He is aiso must be held to expect the natural and probmade to realize that there are well-defined able consequences of his acts, that the proxprinciples of law that govern the stopping imate and not the remote cause must be and starting place of his inquiry, whatever held liable, are constantly being repeated in that inquiry may be.
the cases, and yet few of the judges analyze
the terms they are using. If they did they This is of vital importance. It involves teaching the student how to limit the sphere their actual decisions they are.
would often see how utterly unrelated to and scope of his inquiry. Even if the stu
In this section of the course, then, the student has had that kind of training in his
dent is to be taught to distinguish between High School and College days, (which is
that which is a datum of substantive law, hardly probable) still there is a necessary (namely the combination of specific facts,
a and inevitable place within the law school
the question growing out of these facts curriculum for a course which re-directs the
and the way the question was answered), student's abilities when dealing with that which is new to him, namely legal subject ing the problem presented by the case,
and that which is merely a method of solv
, matter. The ability to handle electrical
namely, mental processes of the judge). apparatus, economic formulae, and the bi
The former is fixed; and however much it nominal theorem needs to be re-shaped
may be distinguished from other cases, cirsomewhat before the student can handle
cumscribed or delimited, attacked and exeven the most commonplace problems of
plained away, it stands as binding until reany section of substantive law.
versed by another court of competent jurThen, too, the study of the theory of isdiction. But the latter is not binding. It proximate cause will present cases, which,
is a tentative guide and not an unimpeachif properly analyzed, will teach the student able dogma. The decision must be accepted, how to differentiate between the rule of the reasoning of the court can be ignored if law for which the case stands and the
better reasons present themselves. Students method of reasoning by which the court ar- rely too much and too blindly upon the lanrives at its decision. It is a truism of legal guage of the court, a text book, or the instudy that judges have an uncanny instinct structor himself. They must be taught to by means of which they reach a correct so- think about and criticise the language as lution of a given case, while at the same well as the facts. They must be made to ertime the reasoning by which they attempt plain their reasons for a given holding as to support their decisions is often falla- well as to memorize these reasons. cious and sometimes ludicrous. This is
The function, then, of chapters two and particularly marked in cases dealing with three of the case-book is to develop in the proximate cause, for here the courts are
student an ability to analyze and frame defusing terminology and follow lines of rea
initions, to recognize which definitions can soning which constantly lead them to con- be utilized for the solution of his specific clusions so psychologically impossible that
CT. Levitt; Proximate Cause and Legal one wonders how courts can be so blind to ! Lialility 90 Central Law Journal 188, 191 et seq.
problem, to see how legal facts are related ; chapters four and five of the case-book ultto each other, to limit the scope of his in- imately lead. It is here that the definite requiry within relevant spheres, to distinguish lationship between the individual and the between the fixed and tentative factors in State and Society emerges in its legal each case, and to realize that there must aspects. It is the first time, as the ordibe some genuine, unequivocal relation be- nary curriculum runs, that the student is tween the act or omission which is charged faced with this problem and made to apply to the defendant and the specific injury himself to it. Here he learns that an indiwhich the plaintiff has incurred.
vidual must make compensation for the reLiability will be imposed upon individuals sults of his activities, even though these are by reason of their acts or omissions, not not the proximate consequences of his acts only because of their relations to other indi- and even though the element of blame in viduals as individuals, but also because of his conduct is negligible. He begins to see their relations to the State and to society that public, and social interests outweigh generally. When the interests of one indi- more often than not, individual interests. vidual is balanced against the interests of This is particularly true of the subjects another individual, there is no inherent rea- studied in chapter five. For here the stuson why one should outweigh the other. dent considers the reasons why men are alAt most the Law can but take a fair ra- lowed to destroy property, reputation and tional rule and apply it to the dealings be- even life itself, without being punished. He tween the two individuals. But when the in- is taught that certain types of acts, under terests of the individual come into conflict some circumstances, are permitted, and that with the interests of society, either in its or- he will be protected in the doing of these ganized form, the State, or its inchoate acts and will not be held accountable for form, the general body politic, not merely their consequences. He discusses the meanrules but principles and standards need to ing of duty, authority and privilege and debe considered, weighed and enforced. limits the sphere within which each applies. The individual is a societal creator and Above all this is an excellent place for eradcreation. He cannot exist alone. His ac- icating the tendency on the part of the stutions affect groups and masses of peo- dent to use the word “right" when he means ple. His activities have, or may have, con- almost anything but a legal right. Insistsequences which need to be confined, con- ent curbing of the use of this term results, trolled, restrained and curbed. As the cir- in a very short time, in having the student
, cumstances of time and place change he use the term very rarely, and then only may be free to act or not as these circum- with a careful definition attached thereto. stances may determine. An inflexible rule At this point it may be urged that in of conduct cannot be applied to all of his spite of my former statement that I am not activities. What is proper in one set of cir- in favor of giving first-year men a course cumstances may be improper in another set in denatured jurisprudence, I am actually of circumstances. His activities must be tcaching a section of jurisprudence. For, judged by standards of conduct, and lia- nothing can be more obviously a part of jurbility must be imposed upon him, if at all, isprudence than the nature of right, duty, because of principle underlying social rela- authority, act, cause, and interests.
This tionships, and not because of a fixed rule of course is true, but it is equally true that or concept of law, which is applicable only every part of substantive law is a part of when an individual is balanced against an jurisprudence. The objection overreaches individual.
itseli. You cannot get away from jurisIt is to such principles and stanslards that prudence while working with the subject the ciass room discussions of the cases in matter of jurisprudence. There is this
difference, however, between the teaching more power to analyze the facts presented of Jurisprudence and the teaching of Legal to them, with greater ability to distinguish Liability. In the former the emphasis is between essentials and unessentials, with upon the philosophy of law and the legal a keener realization of the need for accurate subject matter is used by way of illustra-thinking, and a greater willingness to work tion and argument; but in the latter the sub- on the cases, instead of waiting on the project matter is of first importance and the fessor, than those who have not had this insocial and philosophic backgrounds are uti- tensive training. It may be urged that it is lized, as to my mind they should always be the function of every course and every inutilized, for finding and developing the rea- structor to give this intensive mental stimsons why the law is as it is. We are not ulation. The answer is that all courses and teaching jurisprudence with substantive law all instructors do not do this. The old saw as illustrative material, but we are teaching holds true in teaching as well as politics; substantive law, with the philosophy of law “Everybody's business is nobody's busias a reason when reasons are demanded. ness." There should be one course definiteThat is, we are not questioning the validity ly set aside to do this much-needed thing. of the foundations of the entire legal order- and one instructor, who is especially fitted ing of society, but we are taking the sub- by temperament and training to do this stantive law as it is and trying to see how work, definitely saddled with that responit is connected with this legal ordering. And, sibility. The course I think, is the course in again let me say, both substantive law and Legal Liability; the instructor should be a the philosophy of law are simply means to devotee of sociological jurisprudence. an end, i. e., getting the student to think his
ALBERT LEVITT. problems through.
Washington, D. C. Summing up then, we can say that the scope of the course in legal liability is the definition of certain legal terms, rules, prin
EVIDENCE-CARBON COPIES. ciples and standards; the utilization of these
MARTIN & LAVIER PAINT CO. v. DAVIELS. definitions as working tools for the development of the study of substantive law; and
108 S. E. 246. methods of reasoning on legal subjects which will help develop thinking powers of
Court of Appeals of Georgia, Division No. 1,
July 26, 1921. the students. The object of the course is to teach methods of approach to legal prob
Duplicate or carbon copies of letters made lems; to stimulate mental functioning; and by the same pencil at the same time are not to bridge the gap existing between pre-legal
"copies," but duplicate originals, and could bt
introduced in evidence without notice to pro. and legal studies,
In conclusion one must frankly raise this Upon the call of the case for trial, counsel question; Does the course in legal liability for the plaintiff company, in response to a actually do all I have claimed for it? Vy
notice from the defendant to produce certain
letters alleged to have been mailed to the plain. answer cannoi be an absolute one. lly ex
tiff, read affidavits from all the partners of the perience is very limited and my data very
plaintiff company showing that no such letters neagre. But such as they are, this tenia- had ever been received by them or the comtive, undogmatic conclusion is justified. pany. Subsequently, upon the trial, the deThose men who have studied legal liability
fendant was permitted, over the plaintiff's ob
jection, to prove that he had written such let. intensively and hard approach their other
ters to the plaintiff company, and had properly courses with a greater degree of under- | addressed and stamped the envelopes and placed standing of what their problems are, with I them in the post office; that his return ad
dress was upon the envelopes, and that the letters had never been returned to him; that the letters which he (the defendant) held in his hands were duplicate or carbon copies of the letters mailed to the plaintiff companythat they were made by the same pencil at the same time. The plaintiff objected to this evi. dence, and also to the introduction of the letters themselves, on the grounds that the orig. inals of the letters had not been sufficiently accounted for to authorize the introduction of secondary evidence, and that the evidence was irrelevant and immaterial, since the uncontradicted affidavits of all the members of the plaintiff company, which were read in response to the notice to produce the letters, showed that the letters had never been received by the company, and therefore the presumption that they had been received was completely rebutted. Another ground of objection to one of the letters was that it countermanded the order for the goods in question, which order was not subject to countermand. These grounds were properly overruled, for the following reasons:
First, the letters admitted in evidence were not copies, but were “duplicate originals," and could have been introduced in evidence without any notice “to produce.” Bowman & Tarp. ley v. Atlantic Ice & Coal Co., 19 Ga. App. 115 (2), 117, 91 S. E. 215, and citations.
Second, the affidavits of the members of the plaintiff company, read in response to the notice to produce, were not admissible evidence, and were not put in evidence during the trial of the case, and were properly disregarded by the court.
Third, the fact that one of the letters coun. termanded the order which was not subject to countermand did not render the letter inad. missible. The plaintiff was suing uponi open account, and while the order for the goods sold provided that it was not subject to countermand, yet if the defendant did in fact countermand it before the goods were shipped, while this would not relieve him from liability, the plaintiff could not maintain an action upon an open account for goods sold and delivered, but would have to sue for a breach of the contract.
The evidence authorized a finding that the goods shipped to the defendant were not the goods ordered by him, and the verdict in his favor was supported by the evidence, and the court did not err in refusing to grant a new trial.
Note-Admissibility in Evidence of Carbon Copies as Duplicate Originals.- In the case of In
ternational Harvester v. Elfstrom, 101 Minn. 263, 112 N. W. 252, 12 L. R. A. (N. S.) 343, it is held that the different numbers or impressions of a writing produced by placing carbon paper between sheets of paper and writing upon the exposed surface are duplicate originals and either may be introduced in evidence without accounting for the non-production of the other.
Two papers of loss, simultaneously prepared. one being mailed to the insurance company and the other retained by the insured, were held to be of equal dignity in Catron v. German Insurance Company, 67 Mo. App. 544. Likewise, in Wright v. Chicago, B. & Q. R. Company, 118 Mo. App. 392, 94 S. W. 555, it was declared that a carbon copy of tickets showing the weights of cattle shipped, made at one writing of the weight upon the paper ticket, was practically an original, and that there could be no objection to receiving it as evidence.
In Virginia-Carolina Chemical Company v. Knight, 106 Va. 674, 56 S. E. 725, a copy of an accident report, which was one of three, made at the same time by the same impression of the copying pencil, was regarded as a triplicate original.
The same rule was applied to a carbon copy of a notice to quit, made on a typewriter at the same time as the original, signed by the same persons and in every respect an exact duplicate, one of which was retained and the other served on the tenant. The one retained, it was held, could be offered in evidence without notice to produce the one delivered. Cole v. Ellwood Power Company, 216 Pa. 283, 65 Atl. 678.
Where a claim for damages against a city was made in duplicate on a typewriter, the copy retained by claimant's attorney was admissible in evidence without notice to produce the other, although the duplicates were signed by the attorney with pen and ink. Gainesville v. White, Ga. App., 107 S. E. 571.
Notices of a demand of possession of land, prepared at the same time, and all alike except that three of them were addressed to different tenants and the fourth retained by the party who prepared them, were held to be all original duplicate papers. Westbrook v. Fulton, 79 Ala. 510. Gardner v. Everhart, 82 111. 316.
Letter press copies of documents do not fall within this rule, however, and are not admissible as originals. Note in 12 L. R. A. (N. S.) 3.44.
In Gordon v. Christenson, 188 N. Y. Supp. 135, it is held that defendant may prove his letter to plaintiff by a copy thereof only aiter notice to plaintiff to produce the original.