CHAPTER II

THE TEST OF LIABILITY

§ 9. Liability whether determined by relation of party doing injury, or by intent.

10. Relation as test of liability.

11.

The false test of malicious intent.

12. Malice as including desire to benefit one's self.

§ 9. Liability whether determined by relation of party doing injury, or by intent.-In the view taken in this treatise, civil liability for injury depends solely on the nature of the relation of the party doing the injury, and not at all on the presence or absence of malice or malicious intent. It would seem to have been said with truth that "the English law, which in its earlier stages began with but an imperfect line of demarcation between torts and breaches of contract, presents us with no scientific analysis of the degree to which the intent to harm, or, in the language of the civil law, the animus vicino nocendi, may enter into or affect the conception of a personal wrong." Although such liability may exist in the absence of intent,2 it may be conceded that to an extent it depends on whether there was such intent, as in case of a pure accident. But, ignoring such exceptional cases, we shall for present purposes assume that in each case of injury the act producing injury was done with intent to produce such injury. It will scarcely be pretended that the presence or absence of mere intent constitutes a universal test of liability. But the view that the presence or absence of malice or malicious intent constitutes a test seems recently to have gained ground, especially in connection with the determination of the legality of acts of labor and other combinations.

1 By Bowen, J., in Mogul S. S. Co. v. McGregor, 23 Q. B. D. 598, 613 (1889). That the animus vicino nocendi did so enter into the conception of a wrong as viewed

by the Roman law, see Pollock on Torts, p. 136.

2 As in case of trespass and conversion. See Pollock on Torts, p.

9.

§ 10. Relation as test of liability.-The persistence of the doctrine giving effect to malice or malicious intent as a test of liability, is undoubtedly due to the absence of a comprehension of what is the true test, which is, we submit, whether the act was the natural incident or outgrowth of some lawful relation.3

Perhaps the most striking and suggestive illustration of such a relation is that of the owner of tangible property. Particularly has the test indicated been applied to the case of ownership of real estate. It is the generally-accepted doctrine that the owner of land is not liable for an injury resulting from an act done upon his own land, merely because the act was done with intent to do the injury. In such case the act is merely an incident or outgrowth of the lawful relation of owner. It is a mistake, however, to suppose that the doctrine is confined in of the party doing the injury. See also articles in 11 Harv. Law Rev. 449, 463 (1898) by E. Freund; 19 Law Quart. Rev. 37, 172 (1903) by D. R. Chalmers Hunt; editorial note in 18 Id. 1 (1902); articles in 16 Harv. Law Rev. 236 (1902-3) by E. F. McClennen; 3 Va. Law Reg. 163, 169 (1897-8) by W. L. Royall. Compare as to doctrine of privilege in libel, Hollenbeck v. Ristine, 105 Iowa, 488; 75 N. W. 355; 67 Am. St. Rep. 306 (1898).

4 Thus, in Passaic Print Works v. Ely & Walker Dry Goods Co., 105 Fed. 163; 44 C. C. A. 426; 62 L. R. A. 673 (8th C., 1900) the sale of certain goods at a reduced price was held not to produce an actionable injury to the manufacturer thereof, though the motive of the seller was "to injure the business of" such manufacturer and "to cause it great loss in money," and to break up and ruin its trade among the jobbers in a certain locality. This result was reached by an application of the doctrine thus stated: "The right to offer property for sale, and to fix the price at which it may be bought, is incident to the ownership of property, and the loss which a third party sustains in consequence of the exercise of that right is damnum absque injuria."

Phelps v. Nowlen, 72 N. Y. 39; 28 Am. Rep. 93 (1878); Mayor, etc., of Bradford v. Pickles, App. Cas. (1895) 587; Metzger v. Hochrein, 107 Wis. 267; 83 N. W. 308; 50 L. R. A. 305; 81 Am. St. Rep. 841 (1900). See, however, Chesley v. King, 74 Me. 164; 43 Am. Rep. 569 (1882). That, for instance, creating noises on one's land is not a natural incident or outgrowth of the relation of owner of land, see Allen v. Flood, App. Cas. (1898), 1, 101, commenting on Keeble v. Hickeringill, 11 East, 574, note (1706), a case where firing a gun on one's own land frightened wild fowl from a neighbor's decoy. It was further said (p. 133) that Keeble v. Hickeringill may be "explained by the circumstance that, if the defendant merely fired on his own land, in the ordinary use of it, his neighbor could make no complaint, whilst if he was not firing for any legitimate purpose connected with the ordinary use of land, he might be held to commit a nuisance." What is this but saying that the act of firing, though done upon the land, was not the natural incident or outgrowth of the lawful relation as owner of such land? See article in 16 Harv. Law Rev. 236 (1902-3) by E. F. McClennen.

its application to the relation of owner of land. The existence of the relation of party to a lawful contract enables such a party to enforce or terminate the contract according to its provisions, without reference to the presence of intent to injure another party to the contract or a third person." The doctrine just stated applies (or should be regarded as applying) to the relations of competitor in trade, of employer, and of employee. In the line of what we have already stated, the failure to recognize and apply this doctrine seems to be largely responsible for the confusion and conflict in the decisions relating to the legality of labor and other combinations. It will be our endeavor in this part of this treatise to show its application to such cases.

§ 11. The false test of malicious intent.-It has already been intimated that the absence of a comprehension of the true test just indicated seems to be the cause of the introduction of the false and misleading test of malice or malicious intent. This observation, however, has reference to what has been termed malice in fact as distinguished from malice in law. Malice in

This may have been the view of the court in Moores v. Bricklayers' Union, 7 Ry. & Corp. L. J. 108 (Super. Ct. Cin., 1889), citing dissenting opinion in Capital & Counties Bank v. Henty, 7 App. Cas. 741, 766 (1882).

7 Thus, in Raycroft v. Tayntor, 68 Vt. 219; 35 Atl. 53; 33 L. R. A. 225; 54 Am. St. Rep. 882 (1896), no action was held to lie for procuring a discharge from employment by threatening the employer that the defendant would terminate a contract that he had the right to terminate at any time. To the same rule seems referable Beechley v. Mulville, 102 Iowa, 602; 70 N. W. 107; 63 Am. St. Rep. 479 (1897), where an action by a member of a combination among fire insurance companies and agents to fix rates was held not maintainable as for a conspiracy to destroy the

plaintiff's business as an insurance agent, merely because of the combined action of the defendants to enforce the rules and penalties against him, as by imposing fines and revoking agencies. See Ertz v. Produce Exchange Co., 82 Minn. 173; 84 N. W. 743; 51 L. R. A. 825; 83 Am. St. Rep. 419 (1901). Compare Lancaster v. Hamburger, 70 Ohio St. 156; 71 N. E. 289; 65 L. R. A. 856 (1904; see § 71), where acts of a patron of a street railway leading to the discharge of a conductor were held to furnish the latter with no cause of action against such patron irrespective of his motive.

8 The view condemned in the text seems expressed in Walker V. Cronin, 107 Mass. 555, 562 (1871), where, after stating the rule allowing an action for "loss or damage by the wrong or another," it was

fact, in its accepted signification, has reference to a certain mental or psychological condition or attitude, that is, it "means ill