Tort

There are kinds of cases, on the other hand, in which the law, without aid from legislation, has imposed on occupiers and other persons in analogous positions a duty stricter than that of being answerable for themselves and their servants. Duties of this kind have been called "duties of insuring safety." Generally they extend to having the building, structure, or works in such order, having regard to the nature of the case, as not to create any unusual danger to persons lawfully frequenting, using or passing by them, which the occupier knows or ought to know and could prevent by reasonable care ; but in some cases of "extra-hazard ous" risk, even proof of all possible diligence—according to English authority, which is not unanimously accepted in America —will not suffice.

Classification.

The classification of actionable wrongs is per plexing. We may start either from the character of the de fendant's act or omission, with regard to his knowledge, inten tion and otherwise ; or from the character of the harm suffered by the plaintiff. Whicheer of these we take as the primary line of distinction, the results can seldom be worked out without call ing in the other. Taking first the defendant's position, the widest governing principle is that, apart from various recognized grounds of immunity, a man is answerable for the "natural and probable" consequences of his acts; i.e., such consequences as a reasonable man in his place should have forseen as probable. Still more is he answerable for what he did actually forsee and intend. Know ledge of particular facts may be necessary to make particular kinds of conduct wrongful. Such is the rule in the case of fraud and other allied wrongs, including what is rather unhappily called "slander of title," and what is now known as "unfair competition" in the matter of trade names and descriptions, short of actual piracy of trade-marks. But where an absolute right to security for a man's person, reputation or goods is interfered with, neither knowledge nor specific intention need be proved. This rule was known some time ago to apply to the exercise of rights of property, and such speculative doubt as remained was removed by the decision of the House of Lords in the leading case of Allen v. Flood (1898, A.C. ). We now know that it applies to the exercise of all common rights. The exceptions are very few, and must be explained by exceptional reasons. Indeed, only two are known to the present writer—malicious prosecution, and the mis use of a "privileged occasion" which would justify the com munication of defamatory matter if made in good faith. In each case the wrong lies in the deliberate perversion of a right or privilege allowed for the public good, though the precise extent of the analogy is not certain at present. It was formerly supposed that an action by a party to a contract against a third person for procuring the other party to break his contract was within the same class, i.e., that malice must be proved. But since Allen v.

Flood, and the later decision of the House of Lords in Quinn v. Leatteem (1901, A.C. 495), this view has ceased to be tenable. The ground of action is the intentional violation of an existing legal right ; which, however, since 1906, may be practised with impunity in Great Britain "in contemplation or furtherance of a trade dispute": Trade Disputes Act, sec. 3. It must be remem bered, however, that the presence or absence of personal ill will, and the behaviour of the parties generally, may have an important effect, when liability is proved or admitted, in mitigating or aggra vating the amount of damages awarded.

We have already had to mention the existence of grounds of immunity for acts that would otherwise be wrongful. Such grounds there must be if the law is to be enforced and justice administered at all, and if the business of life is to be carried on with any freedom. Roughly speaking, we find in these cases one of the following conditions: Either the defendant was executing a lawful authority; or he was justified by extraordinary necessity; or he was doing something permitted by legislation for reasons of superior utility, though it may produce damage to others, and either with or without special provisions for compensating dam age ; or he was exercising a common right in matters open to free use and competition; or the plaintiff had, by consent or otherwise, disabled himself from having any grievance.

As Justice Holmes of the Supreme Court of the United States has said, we allow unlimited trade competition (so long as it is without fraud) though we know that many traders must suffer, and some may be ruined by it, because we hold that free com petition is worth more to society than its costs. A State with different economic foundations might have a different law on this, as on many other points. This freedom extends not only to the exercise of one's calling, but to choosing with whom and under what conditions one will exercise it. Also the law will not enquire with what motives a common right is exercised; and this applies to the ordinary rights of an owner in the use of his property as well as to the right of every man to carry on his business. The rule that a man's motives for exercising his common rights are not examinable involves the consequence that advising or pro curing another, who is a free agent, to do an act of this kind can, a fortiori, not be an actionable wrong at the suit of a third per son who is damnified by the act, and that whatever the adviser's motives may be. This appears to be included in the decision of the House of Lords in Allen v. Flood. That decision, though not binding in any American court, is approved and followed in most American jurisdictions. It is otherwise where a system of coercion is exercised on a man's workmen or customers in order to injure him in his business. The extension of immunity to such conduct would destroy the value of the common right which the law pro tects: Quinn v. Leathem.