Page:The Green Bag (1889–1914), Volume 18.pdf/156

 THEORY AND DOCTRINE OF TORT sense of intent — the "fraudulent intent" of the books. In this latter sense, when the intent is inspired by an evil motive, fraud differs little, if at all, from malice as motive. The same evidence will suffice to prove either. Deceit will be the only example of wrong ful means specially dealt with in this book. It is also plain doctrine that if one's conduct violates common standards of care, skill, or diligence, this will destroy what otherwise might be a defense of legal right. I have a legal right to drive in my carriage, I have a legal right to send my produce to market in my market wagon; but if I drive my carriage without reasonable care, skill, or diligence, whereby I am brought into collision with another who is acting reason ably, or if my servant similarly drives the market wagon with like result — in these and a thousand other cases of the kind my legal right will avail me nothing in an action by the person who has suffered harm. I have been guilty of negligence. In regard to this term negligence, the fact should be emphasized at the outset that the conception is not to be taken in law as it is ordinarily understood, that is, as consisting of a state of the mind — a sort of negative state of the mind. However common in reality it may be that such a mental state exists in cases of negligence, in law negli gence must be found in conduct, consisting either of acts or omissions; these being followed too by the harm as a mere event, not as an intended result. In this latter particular, negligence differs from all other kinds of misconduct in tort; where the result may be, and often is, intended, and further, the misconduct in other cases is always an act.1 The subject need not further be pursued in the present place. i "Act" in the proper sense, and as generally understood in the law, is a thing done or word spoken as the effect of psychic or mental process, that is to say, in consciousness — of purpose —

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Now let it be supposed that no wrongful means were employed, and that the general standards of care, skill, and diligence, were observed — that all conduct of the kind was legally rightful; it will still remain to consider whether one's intention or motives, or both together, when morally culpable, may affect one's defense of legal right. In a word the question is, of the place of malice in the law of torts. This question may be one of reasoning — logic — or one of social determination. In the first aspect consider the matter of intent: B intended to inflict the harm of which A complains — that is, A says that, notwithstanding the fact that B had a legal right to do or omit what he did, B is liable to him because he brought on the harm intentionally; the intent to inflict the harm destroyed his right. The distinction between intent and motive should not be overlooked.1 The intent is, purpose or object in the concrete — the stretching out (such is the figure) of the mind towards the end desired; while the motive is that which inspires and causes that stretching out. Now the intent may be morally culpable, while the motive is good enough; the intent may be to inflict harm, while the motive is one of benefitting another, or one of ordinary self-interest. The motive, if not the highest, would not, in either case, be generally considered legally culpable.2 Two questions may then arise; first, can the intent to harm where the motive is good, destroy B's defense of legal right; if not, can B's intent, when inspired wholly by a bad motive, such as hatred of A, have that effect? Theoretically, a third question might as distinguished from mere reflex or automatic action, such as movement in sleep. Hence to speak of an "intended act" is a pleonasm; an act is necessarily intended, though its consequences may or may not be intended. See Ziehen Physi ological Psychology, 29 (London, 1892). 1 See South Wales Miners' Fed. v. Glamorgan Coal Co., 1905, A. C. 239, 252, Lord James. J Lord James, in case just cited.