CHAPTER V. WRONGFUL ACTS.-ELEMENTS OF A WRONG. Wrongful acts-Liability-Presumptions of law-Questions of law and fact-Essential acts in slander and libel-Defamatory-Falsity-Voluntary - Involunta ry-Intention-Malice. § 60. Although we are unable to predicate of any act per se whether or not it is a wrong (§ 51), we may, at least as to some acts, determine of them per se whether or not they are wrongful. § 61. An act is wrongful which, as a necessary or as a natural and proximate consequence, occasions hurt of body or pecuniary loss to another than the actor.1 When the necessary consequences of the act must be hurt of body or pecuniary loss, then the act is patently wrongful, or wrongful per se. When the act is one the consequences of which are not necessarily hurtful to the person or property of another, but is an act the natural and proximate consequences of which may occasion hurt to the person or property of another, then it is latently wrongful. It is wrongful, provided that as a natural and proximate consequence there ensues personal hurt or pecuniary loss to another. One and the same act may occasion harm to the person and loss of property to another, and either by its necessary or its natural and proximate consequences, or 1 Bonomi v. Backhouse, 9 Ho. Lords Cas. 503; Smith v. Thackerah, Law Rep. 1 C. P. 566. It is said there is a distinction between an action for a wrong and an action for negligence. Dickinson v. Mayor of N. Y. 92 N. Y. 588. both. It is not always easy to determine what are necessary and natural and proximate consequences, and to distinguish them from those which are not necessary, not natural, or not proximate (remote) consequences. The rules for making this determination and distinction will be hereafter considered. We have here but to remark that the necessary, natural and proximate consequences of an act are those of which alone the law takes cognizance, and these it is which constitute in legal phraseology damage or injury. Any consequence which is neither necessary nor natural and proximate is disregarded in law. § 62. No act but a wrongful act can become a wrong. In the absence of any excuse for it being shown, every wrongful act is prima facie a wrong. It is a wrong provisionally or conditionally; that is to say, it is regarded for all purposes as a wrong, unless and until a legal excuse for the doing it is shown. That which does not exist and that which is not shown to exist are the same. A legal excuse not shown to exist is the same as though no legal excuse existed. The burden of showing the existence of a legal excuse or a defense is always upon the doer of the wrongful act. § 63. The theory is that anything which must be shown to establish a legal excuse or a defense is no part of the essential element of a wrong. In practice, to entitle to a remedy, it is required only to show a wrongful act done, and nothing more appearing, the right to the remedy follows as of course. Reason and expediency alike demand that in this respect the theory should correspond to the practice. § 64. Legal excuses are of two kinds-such as constitute an absolute defense and such as constitute a conditional defense. A legal excuse of the latter kind is a defense, until some additional fact is shown which takes from it the character of a legal excuse. The legal excuse that the language was spoken by a judge as such (§ 227), or by a witness as such (§ 223), is of the first or absolute kind. The legal excuse that the language was published to one who was interested to know it, and with a belief that it was true, is a legal excuse of the second or qualified kind (§ 241). The excuse exists only provided it does not appear that the language was published not believing it to be true, or published to one not interested to know it. 65. There is this distinction between legal excuse and defense. Legal excuse is such a state of facts as prevents a wrongful act amounting to a wrong. Defense includes legal excuse and more, namely, those cases in which the wrong is admitted to have been done, but where, from some circumstance, such as the statute of limitations, or satisfaction, or in the action for libel the truth of the language published, the plaintiff has forfeited or waived his right of action. § 66. The question what constitutes a wrong or when has a wrong been committed, and the question who is liable therefor, are essentially distinct questions, and to be determined by different rules. § 67. As regards liability, no one is responsible for involuntary acts,1 nor for any other than wrongful acts 1 A man must will an act before he can be responsible for it. (Wood's Civil Law, 18.) No action lies for an inevitable accident. (Harvey v. Dunlop, Hill & Denio Sup. 193; see Center v. Finney, 17 Barb. 94; affi'd, 2 Selden's Notes, 44.) No man is liable civilly or criminally for a purely accidental mischief, that is to say, for the consequences of an act not his own which he was unable to foresee, or, foreseeing, was unable to prevent. (2 Austin's Lect. Juns. 165, 167.) If there had been any necessity for the defendant's conduct, it would have been matter of defense. (Ld. Ellenborough, Rex v. Vantandillo, 4 M. & S. 73; Reg. v. Hicklin, Law Rep. 3 Q. B. 376.) The act must be intentionally done, the meaning of which is, that the defendant should know what he published, for, as in the case put by Starkie, if a servant should deliver a sealed letter containing the defamatory matter, without knowing its contents, he would not, though the actual in (§ 62). All who, without legal excuse, concur in a wrongful act are alike liable, either jointly or separately. No one can excuse his concurrence in a wrongful act merely on the ground that in what he did he acted as agent for another.1 It sometimes happens that those who are in nowise concerned in the actual doing of a wrongful act, or a wrong, are nevertheless liable therefor; this, be it observed, is not on account of any presumed connection with the act, but because under the circumstances they are legally responsible for the acts of the actual wrong-doers.* It may also occur that the one who actually does the act may not be liable, while for that same act another may be liable, 8 § 68. The proposition that one is liable for his wrongful act implies, in terms, liability for the necessary, natural, and proximate consequences of the act. This leaves no room for any question as to the intent with which the act is done. There may or may not be any intent, good or bad; but intent or no intent, the liability is for the act and strument of publication, be liable to an 1 "There are no agencies in crime." (Lowenstein v. The People, 54 Barb. 305; Keenholtz v. Becker, 3 Denio, 346, and § 114, post; also cases cited II Abb. Pr. R. 100.) If a person does an act with a guilty intent, he is not the agent of any one. If he does it innocently, at the instance of another, he is the agent of that person; and if two have agreed to employ him, he is the agent of both. (Alderson, B., Reg. v. Bull, 7 Law Times, 8; and see Moloney v. Bartley, 3 Camp. 210; Hecker v. De Groot, 15 How. Pr. R. 314, and post, §§ 265-7.) The acts of an attorney at law, in carrying out the instructions of his client, are in certain cases exceptions to the rule stated in the text. (See 34 Alb. L. J. 479, and post, note to 122.) "There is a great distinction between the authority which will make a man liable crimi nally and the authority which will make him liable civilly." (Byles, B., Parkes v. Prescott, L. R. 4 Ex. 169182.) 2 See post, Publisher. 3 See ante, note to § 67, and post, Publisher, § 121. its consequences, not for the intent. By the law of England, intent alone, without any overt act, may constitute treason; with this exception, there is no case in which intent alone, without an act, can constitute a wrong. The prima facie liability for the commission of a wrongful act can be avoided only by showing some defense or lawful excuse. Showing the act to have been done with a good intent would not of itself, in any case, constitute a defense or lawful excuse. The consequences of an act are incidents to the act, and inseparable from the act. Liability for the one is inseparable from liability for the other. The usual ground upon which this liability for the consequences of an act is placed is, that the law presumes every one to intend the necessary and natural consequences of his acts.1 The phrase, the law presumes, is objectionable. The law does not presume. It is customary to say that the law presumes every one innocent; every one of good repute; every wrongful act to be malicious; every one to intend the consequences of his acts, &c. But it is not so. If 1 The law presumes a person to intend the injury his acts are calculated to produce. (Haire v. Wilson, 9 B. & Cr. 643; Viele v. Gray, 10 Abb. Pr. R. 7, and a series of dicta.) A man is as much answerable for the probable consequences of his act as for the actual object. (Rex v. Moore, 3 B. & A. 184.) "It is a universal principle that, when a man is charged with doing an act (that is a wrongful act without any legal justification) of which the probable consequences may be highly injurious, the intention is an inference of law resulting from the doing the act." (Rex v. Dixon, 3 M. & S. 15; cited Reg. v. Hicklin, Law Rep. 3 Q. B. 375.) We are not unmindful of the fact that the books are full of such expressions, as the law presumes, presumption of law, &c. But the phrase is objectionable and should be reformed. Burrill says, the presumption is rather an assumption. (Presump. Ev. 10, 43; and see 6 Lond. Law Mag. 354.) The inference, for it is absurd to call it a presumption. (Stephen's Crim. Law. 182.) Presumptions of fact are but inferences drawn from other facts." (Mason, J., O'Gara v. Eisenlohr, 7 Trans. App. 317.) Distinction between presumption of evidence and presumption of law, see The People v. McCann, 16 N. Y. 66; Powell v. Cleaver, 2 Brown Ch. R. 499 Presumptions are not based on the supposition that the fact presumed exists, but because the policy of the law requires such a presumption. (Doe v. Earnhart, 10 Ired. Law Rep. 516.) Presumption "is the inference of one fact from another." (Duncan v. Little, 2 Bibb, 426.) Counsel: It must be assumed that the trustee will do his duty. Pollock, Ch. B.: We must assume nothing either way, but he may not. (Bulnois v. Mann, Law Rep. 1 Ex. 30.) The presumption that every one is bound to know the law has no foundation in fact. (Judge Taney, Blackwell's Tax Titles, 575, note.) |