Page:Harvard Law Review Volume 8.djvu/18

2 purpose commonly it does not matter whether the act is called malicious or negligent. To make out a primâ facie case of trespass or libel, if the likelihood of bringing force to bear on the plaintiffs person or of bringing him into contempt goes to the height expressed by the word negligence, as above explained, it need not go higher. There are exceptions, at least in the criminal law. The degree of danger under the known circumstances may make the difference between murder and manslaughter. But the rule is as I have stated. The foregoing general principles I assume not to need further argument.

But the simple test of the degree of manifest danger does not exhaust the theory of torts. In some cases, a man is not liable for a very manifest danger unless he actually intends to do the harm complained of. In some cases, he even may intend to do the harm and yet not have to answer for it; and, as I think, in some cases of this latter sort, at least, actual malice may make him liable when without it he would not have been. In this connection I mean by malice a malevolent motive for action, without reference to any hope of a remoter benefit to oneself to be accomplished by the intended harm to another. The question whether malice in this sense has any effect upon the extent of a defendant's rights and liabilities, has arisen in many forms. It is familiar in regard to the use of land in some way manifestly harmful to a neighbor. It has been suggested, and brought to greater prominence, by boycotts, and other combinations for more or less similar purposes, although in such cases the harm inflicted is only a means, and the end sought to be attained generally is some benefit to the defendant. But before discussing that, I must consider the grounds on which a man escapes liability in the cases referred to, even if his act is not malicious.

It will be noticed that I assume that we have got past the question which is answered by the test of the external standard. There is no dispute that the manifest tendency of the defendant's act is to inflict temporal damage upon the plaintiff. Generally, the result is expected, and often at least it is intended. And the first question that presents itself is why the defendant is not liable without going further. The answer is suggested by the