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 A SPECULATIVE INQUIRY INTO THE NATURE OF TORTS
By MAX RADIN*

What is a tort?, The question might provoke the somewhat ribald

reply: "Who wants to know?" Certainly the practicing lawyer rarely
needs the information. What he seeks is to find out whether certain
specific conduct which resulted in harm to his client or prospective
client comes clearly enough within any one of several type situations,
so that he can make a reasonable claim for money damages or for
an injunction. His position is, therefore, not essentially different from
that of the common lawyer of an older day who had to ask himself
"Will trespass lie?" "Will case lie?" "Or conversion?" "Must I plead
'Not guilty' or 'Non assumpsit'?" "May I demur?" Nor yet different
from the Roman lawyer who had to decide whether it was a matter
theft of furtum, of iniuriae,of the Aquilian law, or of some special and more
limited action like quod metus causa or si iudex litem suam fecerit.
We can call all these things tort if we like, and we need not commit
ourselves, unless we have an unquenchable zeal for definition and
classification, to any definition of a tort.
That a definition is difficult is not quite a sufficient reason for not
attempting one. But it may be more than difficult, it may be harmful.
It is only in mathematics that definitions are safe, since in that blessed
field of intellectual activity the definition creates the thing defined.
In nearly all other subjects of inquiry, more particularly in the social
sciences and most of all in law, definitions are dangerous because we
are asked to draw limits around things that grew up in sovereign
disregard of the fact that they would some day have to fit into a
definition. This is so striking a characteristic of the law, that it long
ago became a legal maxim: Omnis definitio in iure civili periculosa.
(lavolemus, 2nd Cent. Dig. 50, 17, 202.)

*B.A., College of City of New York; LL.B., New York University; Ph.D., Columbia
University; Professor of Law, School of Jurisprudence, University of California.
'This article both in its character and title was stimulated by recent articles of
Professor Warren Seavey of Harvard. I have omitted confirming footnotes, and
especially those which refer the reader to discussions of the thousands of special
questions involved. The tort-literature forest is amply supplied with trees which
range from ancient oaks to last year's saplings. Each of them is quite capable of
obscuring the view of those who would observe the forest itself. They are almost
exhaustively enumerated in Professor William Prosser's HANDBOOK OF THE LAW
OF TonTs (1941), which in fullness and critical acuteness leaves nothing to be
desired.
698 TEXAS LAW REVIEW

A mathematical definition restricts the facts. The facts cannot pos-

sibly conduct themselves otherwise than the definition requires them
to. Otherwise they cease to exist as facts. But this is regrettably not
so elsewhere.
Now, despite the secular warning against definitions in the law,-and
in similar matters,-those who are concerned with nearly all sciences,
social as well as physical, have an almost irresistible itch to define.
If they define merely to facilitate a general reference to a large group
of data or so economize speech and assist exposition, there would be
no harm in the practice at all. But a legal definition is apt to take
on the airs of a mathematical one and to attempt to constrain the
data to which it ought merely to direct our attention. If we remember
that when we permit ourselves to define terms like property, title,
easement, assignment, contract, we do so merely to be able to use a
conceptual shorthand without which communication would be prac-
tically impossible, we may be as venturesome as we like about even
the most dangerous of definitions in a field in which no definition is
quite safe.
While the common lawyer of an older day and the Roman lawyer
might well dispense with a definition of a tort, since he generally
knew whether he had a cause of actipn or not, the modern lawyer
is not in so simple a case. He can of course begin with the assurance
that nearly everything that was actionable at common law is action-
able now. But many of the actions at common law in which a plea
of "not guilty" was necessary to raise the general issue are considered
contract actions now. And, secondly, there are a great many situations
which create a cause of action which would not have done so at all
at the common law.
The common lawyer of today must in some way that is a little
less definite than that offered his older predecessor convince himself
that he has before him a situation that will justify a claim for some
sort of legal redress. He can do it much as it was done before, by
examining cases in which such redress has been permitted. But he
may quickly exhaust the old categories of fraud, assault, libel, nuisance,
trespass and the like, and still find that the situation confronting him,
is as obviously one that demands redress as any of these, and yet will
not fit into their forms.
Can he meet new situations without some sort of an understanding
of what a tort is? It would be difficult. It would be of little value
to say that a tort is something that is actionable but is neither a
 INQUIRY INTO THE NATURE OF TORTS 699

contract nor a quasi-contract. That is an obvious begging of the ques-

tion. The point is to know why the situation presented creates a cause
of action, at all, if it is not a contract or a quasi-contract.
Historically we may say that all three of the great European sys-
tems, the common law, the civil law, and the canon law, had much to
say about torts long before they either defined them or formed a
general name for them. The Roman law very early, and more or
less by accident, found itself in possession of an action at law that
would cover most of the situations we now describe as torts, the action
of the Aquilian law for any damage caused by a wrongful act, an
iniuria. This was finally put into general terms in the first of the
modem codifications of the civil law system, the French Civil Code.
(Sec. 1382.)
But the definition itself is far from solving the most important of
our problems, and that is the capacity to see an iniuriawhen it occurs.
Some time ago, a distinguished French jurist hoped to dumbfound a
group of common lawyers by reciting Section 1382 of the French
Civil Code and saying with a smile as he closed the book, "That is
our whole law of torts." He omitted, however, to mention that this
statement, whose clarity, concision, and brevity he justly held up for
admiration, needed in order to be intelligible to courts and lawyers,
no less than 336 columns of fine print in one annotated edition of the
code, and 616 somewhat larger columns in another. The former edi-
tion covered cases up to 1920, the latter only to 1905. In addition,
since most torts are also crimes, it would be necessary to add an
almost equal number of illustrative and clarifying cases from the
annotated Penal Code, since most claims for reparation, when crim-
inal prosecutions are begun, are determined in the partie civile of the
criminal court. Evidently, it is not enough to say "faute," "wrong-
doing," "delict," "fault." One must know what actions are wrongful
and faulty and what are not.
The modern Anglo-American law under code procedure, having
declared that there was only one form of action and that it needed no
name or designation, had to find some test or tests to determine when
the allegations of a complaint were not demurrable. It is all very
well for Mr. Miles2 and Sir John Salmond3 to say that there is no
such thing as a law of "tort," but only one of "torts." That would
1MiLEs, DIGEST OF THE ENGLISH CIVIL LAw (1910) XIV-XV.
3
SALMOND, LAw OF (7th ed. 1928) %§2, 3. But cf. the 9th ed. of Salmond
TORTS
by W. T. Stallybrass (1936) §19. All these matters are fully discussed by Professor
Prosser, in his HANDBOOK OF THE LAw OF TORTS (1941) 1-10.
700 TEXAS LAW REVIEW

take us back to the common law system under which we have types
of conduct of considerable variety for each of which an action with
a definite title may be commenced. We should have to try to force
any given situation into these already accepted types. The fact that
we no longer call them by special names like trespass, or assault, or
libel, would make little difference. Since it is undoubtedly true that,
as Mr. Prosser tells us, "new and nameless torts" are being constantly
created, our old categories, nominate or innominate, will not serve us,
when these new situations confront us.
Dean Wigmore declared that to define "tort" as a non-contract
obligation is as sensible as to define chemistry as something which is
not physics. And as an attempt at definition there is no doubt that
nothing could be less instructive or less logically satisfactory than
merely to say that one thing is not something else. One might further
say once more that it begs the question. We know that a contract
is obligatory, because it is a contract, that is to say, given certain
conditions, i.e., offer and acceptance, legality of object and other things,
an obligation is created out of the coincidence of these conditions and
is briefly described as an obligation ex contractu. But if tort creates
an obligation, it is no good to say that a non-contract obligation is one
of tort, unless we know what the conditions are which have been
recognized by law as conditions that create an obligation that is not
one of contract.
If it is true that there is no common ground for any of the groups
of non-contract situations that have historically been called obligatory
by the common law, and that to call a case a "tort" merely means
that it is one of such a miscellaneous group, we can only say that
this is a counsel of despair to which we should not resort until we
have to. It really puts us in a stage of legal development which is
earlier than 135 A.D., since even Gaius felt that recourse to a miscel-
laneous catch-all need be had only after both contract and "delict," i.e.,
"tort," had been exhausted. And by 135 A.D., the Romans had some-
thing very close to a generalized tort, or delict, action.
But, as a matter of fact, we are not quite in so primitive a stage as
has been suggested above. The traditional torts of the common law
were all matters in which, if the allegations were true, the defendant
had been guilty of a moral offense. Now, it is quite true that the breach
of a contract was also often a moral offense, but it was admitted that
sometimes the enforcement of a contract was morally improper rather
than a refusal to enforce it. In the case of the traditional torts, all
 INQUIRY INTO THE NATURE OF TORTS 701

had this element of moral wrong. The act was a transgressio,a tres-
pass, something that went beyond the limits of socially acceptable
conduct.
Evidently the courts are not the only guardians of what is socially
acceptable, and in the main should be called upon to act only when
morally wrong conduct resulted in actual damage to some person or
persons. We have therefore from the beginning two factors. One is
the wrong and the other is the damage.
In Rome the notion of wrong was technically expressed as iniuria,
something that violated ius. It was something wrongful, done to an-
other person, ranging in seriousness from wilful homicide to slight
negligence. Supplementing it was the notion of damnum, damage
suffered by a person without his fault, since the damages he suffers
by his own fault he cannot be heard to complain of. This is formally
recognized in the law [Pomponius (2nd cent.) D. 50, 17, 203, Quod
quis ex culpa sua damnum sentit, non intelligitur [damnum] sentire.]
Shall the injuring person always be compelled to pay for his injurious
conduct? Or shall the injured person always be allowed compensation
for his damage. In the former case there can be no iniuria absque
damno. In the latter, no damnum absque iniuria.
A system of nominate torts served both the common and the civil
law well enough for a long time, especially since both systems devised
a flexible practice by which torts could be extended by analogy. A
good deal of legerdemain could be practised by "actions on the case,"
actiones utiles, actiones in factum ad exemplum, and so on. But since
we no longer require that an action be given a name, the question of
what action is "wrongful," so that, if it results in "damage," an action
will lie to recover compensation for the damage, is still a serious
question.
If we examine the new situations to which the tort concept has
been applied in the nineteenth century, I think we shall see that they
have in most cases been examples of acts which were indisputably
wrong morally but which earlier common law courts would have
regarded as without legal remedy. We may take as examples vio-
lations of the rights of privacy in England and in many American
jurisdictions which have been made to cover, in some places, the
malicious disclosure of past delinquencies whether or not they.have
been redeemed by subsequent good conduct. Some jurisdictions have
created a tort in these cases by statute and some by judicial decision.
And in those in which it is not the case, there is a distinct premonition
it will soon be recognized. It is quite generally admitted that both
702 TEXAS LAW REVIEW

iniuria,in the sense of a moral wrong, and quite calculable damage

are present.
And just as in this field we can see moral wrong, so far as it is
generally accepted in the community in the process of turning itself
into an actionable tort, so in a wholly different one we can note the
changes that make conduct which at first was merely improper,
definitely tortious. In many cases the moral reprehension involved
in certain acts is so long established, so ingrained in our minds, that
some ethical philosophers look to an inherent constituent of man as
its source, and religious authorities find its origin in a divine com-
mandment. But besides these instances which no one challenges, the
factor of moral reprehension is in marginal cases a fluctuating and a
developing one. Acts come to be deemed wrongful which formerly
were innocent and vice versa. Credit transactions with interest were
formerly both sinful and unlawful. So was "regrating," that is, pur-
chasing for resale. Similarly competitive practices that formerly car-
ried no stigma are now classed as "unfair." It is often a matter of
degree. Acts which are only slightly reprehensible may become more
so and may be on their way to receive legal sanction. But in any case
the moral reprehension is there and it must have demonstrably existed
before any court will call the act it reprehends a tort and make it
the source of an obligation.
The difficulties of proceeding in this way is that while there are
many matters that are morally and legally obligatory, some acts
which excite a strong moral reprehension have never been made legally
obligatory. The violation of a solemn promise is a moral wrong, but
if there is no consideration it creates no obligation ex contractu and
has never been called a tort. Similarly the oppressive use of a legal
right is morally reprehensible, but is ordinarily no tort.
How far the abusive exercise of rights will be condemned, will vary
with the time and place. Sometimes it is declared that a vigorous
insistence on every legal claim is the only guaranty of justice. Kant
said something like this and von Ihering after him. There are other
situations in which it would be hard to say whether the prevailing
morals do or do not condemn an act. This does not contradict the
statement that the vast majority of torts are violations of accepted
moral standards, nor yet that the gradual inclusion of new situations
as bases for tort is still dependent on a moral judgment. Obviously the
two fields of morality and law will never be coterminous and it must
be admitted that the unprecise character of some of our moral judg-
ments throws doubt on the validity of the assertion that moral wrong
 INQUIRY INTO THE NATURE OF TORTS 703

is the foundation of tort liability. It is, however, as near such a founda-

tion as we can find.
In order therefore, to understand the nature of a tort, lawyers will
have to come to grips with a question which they have persistently
evaded. That question deals with the relation between law and morals.
Lawyers have evaded it because they are afraid of being called moral-
izers or sentimentalists. They like to think of themselves as technical
experts, and morals is apparently not a technique. Besides, morals
sounds soft and lawyers like to think of themselves as hard. They
are, however, sensitive to the moral censure of legal results and com-
pensate by pretending a lofty indifference to it. They are prone to
think of morals as a vague and nebulous set of standards sharply in
contrast with the precision and definiteness claimed for the law.
Far be it from me to decide so ancient a debate and one so likely
to arouse petulance. But the law itself injects the word "wrongful"
and "fault" into many of the situations on which it predicates liability.
Most of the definitions which are offered for torts stress this element,
and assume that we shall be able to recognize an act as "wrongful"
when we see it. It is hard to see what standards we are to use, unless
they are those of current and traditional morality.
Once we are agreed that an act is wrongful, it does not immediately
follow that a court or some similar public body will or can take
cognizance of it. But if it does, what it will do depends on the special
development of its legal procedure. If, as at the common law, crim-
inal procedure is wholly divorced from civil, the wrongful act will be
punished, if it is to be punished, in one way, and an obligation to
make reparation for the wrong will be enforced in a wholly different
way. Crime and tort, that is to say, are quite separated.
The law in the matter of wrongs has continually oscillated be-
tween punishment and reparation, and this oscillation is merely the
reflection of popular feeling in the matter. There is no difficulty in
getting popular support for the doctrine that a man who has caused
injury to another should be compelled to do something about it. But
it has never been altogether clear whether what he is to do is by way
of punishment or by way of making whole the person injured.
The Roman law-and the Greek as well-differentiated crime and
tort but never completely separated them. The prosecutor of the crime
was regularly the victim of the tort, and reparation, generally in the
form of some multiple of the damage caused, or of a sum fixed more
or less arbitrarily, was taken to be primarily punishment and only
secondarily a matter of making the victim whole. But the Roman law
704 TEXAS LAW REVIEW

finally developed the concept of reparation through a wrong or delict

which became the basic type of such obligations in the later civil law.
This was done by an ancient statute, the Aquilian law-probably as
early as the third century B.C.-which required the payment of money
for property damaged by a "wrongful" act, an iniuria. A limited penal
quality remained. This Aquilian action, made abstract and general,
became the foundation for claims in torts in modern civil law and
received classic formulation in the famous section of French Civil
Code, §1382.

"Every act whatsoever of an individual which causes injury to an-

other obliges the one by whose fault [fauie] it has occurred to make.
reparation for it."
This section has been translated and copied into a great many mod-
ern codes including most of the countries of Latin-America, as well
as Spain and Italy in Europe.
A later attempt at a generalized definition of tort is that of the
Swiss Code of Obligations of 1911. Section 41 runs as follows:

"Whoever wrongfully [widerrechtlich,d'une manidre illicite] causes

damage to another, either deliberately or negligently, owes reparation
to him.
"In the same way whoever deliberately causes injury to another
in a way contrary to morality [die guten Sitten, moeurs] owes repara-
tion to him."

The German Civil Code of 1900, did not venture on a general defini-
tion. But after specific torts are defined (§§823, 824, 825), a much
interpreted section (§826) provides:

"A person who wilfully causes damage to another in manner con-

trary to morality [die guten Sitten] is bound to compensate the other
for the damage."
The common law never formulated a general definition of tort. If
a claim for reparatory damages could not be brought within one of
the list of nominate torts, no recovery could be had, but the list was
large and in the course of centuries so many approximations had been
permitted for the typical examples under these torts, that few con-
ceededly wrongful situations escaped legal remedies.
In both systems what determined the wrongful, tortious, delictual
character of the act was in the first instance a social and moral tra-
dition, old enough to be practically unquestioned, and enforced at
 INQUIRY INTO THE NATURE OF TORTS 705

first by those who possessed religious as well as moral authority. At

the common law, however, when procedure became fixed and the forms
of action had attained a certain independence of anything but their
own legal framework, a wrong was whatever could be the basis of
an action. While analogy stretched these boundaries somewhat and
changes in moral valuations seeped into the formalized law, there was
a limit to which this process could go. The maxim that the law will
not suffer a wrong to be without a remedy is a logical tautology. It
really means that if in some fashion an act had been legally recog-
nized as wrongful, the absence of a specific precedent which would
fit it into a definite form of action would not exclude a legal remedy.
In all these instances, both at Roman law and at the common law,
it was the wrongful act that was emphasized. In the Aquilian action
which had broadened out enormously before Justinian, the wrongful
act was of the most general character. It was anything whatever that
could be called an iniuria,something that contradicted lus, and by the
same token, its chief examples were forms of negligence. This develop-
ment was aided by the fact that the more serious torts, like theft,
conspiracy, libel, assault, had become crimes and were dealt with as
such. But negligence was not a crime, although by its obvious mean-
ing it was distinctly a wrongful act in popular feeling as well as in
legal recognition.
Now, at Roman law, although the penal element had in the Aquilian
action been reduced to a slight increase in calculating money dam-
ages, there was no doubt that a wrongful act justified penalties, and
in its lowest form the penalty consisted of a slightly enhanced repara-
tion. The least the wrongdoer could do was to make the injured whole
and a little more. It would be wrong to permit men to be careless with
impunity. But in this action, the wrongful act-generally but not
always negligence-was not penalized unless it resulted in actual
harm, damnum, while the other torts at Roman law were actionable
and penalized even if no harm resulted.
The Aquilian action put the rationale of tort liability on the other
foot. A wrong is committed by the mere fact of negligence but unless
damage is caused, the wrongdoer need do nothing about it. This is
in accord with a general sense of justice, especially in the case of so
relatively venial a wrong as negligence.
The common law had early come to regard the damnum element
as an effective constituent of a cause of action, if not its exclusive
basis. Some wrongful acts were not actionable at all unless damages
were pleaded and proved. In a great many, the absence of any real
706 TEXAS LAW REVIEW

harmful consequence would result at best in a verdict for nominal

damages, a verdict which was very nearly the equivalent of losing
the suit. In a very few cases, the penal element is fully recognized.
These two bases of popular feeling about wrongs, first that a wrong-
doer should be made to pay because he has done wrong and, second,
that an innocent person damaged should be made whole because he
has been damaged, are often enough in conflict. Both have roots that
go deep enough in a general sense of justice and the law historically
has not quite been able to keep an even course between them, much
less decide for one to the exclusion of the other.
There are two situations in which the damage notion has out-
weighed the notion of wrong-doing. One is the case or a mentally
irresponsible tortteasor and the other is that of vicarious liability.
In both cases it is clear that the fact of damage is the controlling ele-
ment. buppose a man is mured by a very small child or by a madman.
If the child or the madman has property of his own, why should not
the injured person be at least compensated, if innocent even of negli-
gence? To which, it might be retorted, why should the innocent child
or the irresbonsible madman be stripped of his roperty?. If these
two questions are submitted to any public, I think it is likely that it
would say that the former solution is preferable.
Evidently either position would be sustained by an appeal to general
moral standards. Which is the socially better view? It seems on the
whole that reparation to the injured party has somewhat the advantage.
If one of the purposes of a properly instituted society is to minimize
the disturbance that accidents cause-and this can be defended-the
better acilustment seems to be to assist a person injured whenever it
can be done without an excessive burden on some other equally inno-
cent party. The question then is whether in this case the tortfeasor
is equally innocent or whether the burden on the one or the other is
excessive. In the case of a child, this is not quite the case, since in
most instances the child is protected against destitution by his claim
for maintenance against his parents. Destitution of the injured person
by reason of the injury is not so readily qualified.
In the case ot an insane verson, the protection of the irresponsible
tortfeasor is also not readily provided for. It is, therefore, a sheer case
of balance between two approximately equal social interests. The
only ting inat can weigh in favor of reparation is that it is slightly
easier to administer a general rule of reparation than to make it
depend on the special case.
 INQUIRY INTO THE NATURE OF TORTS 707

If we could add to our exemption laws what at Roman law was

known as the beneficium competentiae, the "privilege of retaining a
competence," we might declare a certain minimum of property of an
irresponsible tort-feasor exempt from execution. The normally found
exemptions give little aid here.
Of course the entire situation assumes a wholly different phase if
there was far more extensive use of insurance for personal injuries.
That, however, cannot be made compulsory for the present, and unless
it were so widespread as to be equivalent to a compulsory system, it
would not be adequate to the situation.
While, in these two examples, the weight of popular approval and
the older trend of the common law put the basis of liability rather
clearly on the notion of repairing damage suffered without fault,
the situation created by vicarious liability is of a different sort, but
is in the same direction.
The French Civil Code, after giving its generalized statement of
tort-liability which is definitely based on the wrongful act and only
secondarily on the damage done by the wrong, continues in section
1384-a section cited almost as often as section 1382-to specify the
conditions under which a person might be responsible for the wrong-
ful act of another. These conditions require the relationship of parent
and child, master and servant, schoolmaster and pupil. The parent,
master, or teacher must repair the injuries caused by the fault of
the child, servant, or pupil. The responsibility is almost absolute and
does not depend on any failure of supervision on the part of the re-
sponsible person.
The common law knew no such responsibility of the parent or
schoolmaster. Whenever these persons are held for injuries caused
by the young people committed to their care, it is for a dereliction,
or at least an omission, of their own, in theory and usually in fact.
To be sure, dereliction will often be readily assumed when grave
injury has been caused and no other source of compensation is avail-
able, but it is essential. It is therefore still the fault of the person
doing the damage that is inquired into.
But in the relation of master and servant, and its broader super-
stratum, that of principal and agent, the common law has foregone
the attempt to fix a specific wrong on the part of the principal in
order to engage his responsibility. A half-hearted attempt is occa-
sionally made to impute the wrongful act to the error in judgment
of the principal in selecting his agent, but that is a palpable fiction
which need not be taken seriously. The liability which is caused by
 708 TEXAS LAW REVIEW

the agent's fault is to be repaired by the principal who was not at

fault, and the only ground on which this can be placed is that the
person normally liable, the tortious agent, is usually insolvent. Ob-
viously, this is generally the case when the injuries are caused by a
minor child.
Evidently the desire to repair damage is stronger here than the
desire to prevent or penalize wrongdoing, just as was the case in the
situation under section 1384 of the French Code Civil. There is, to
be sure, someone at fault, but the delict basis is not saved, when the
delinquent does not have to bear the burden of his misconduct.
The common law's dealing With contributory negligence is, on the
other hand, an illustration of its search for a determinable wrongdoer.
The fact that it chooses to make things easy for the court by demanding
a wrongdoer who is exclusively responsible for the damage done, does
not alter this fact. In the methods used in maritime law the loss is
distributed when there is contributory negligence. In both systems,
liability is predicated on wrongdoing and ceases when wrongdoing is
absent or cannot be proven.
How this has worked or has failed to work under modern industrial
conditions is one of the striking examples of the shaping of law by
social facts as well as-of the resistance of an organized professional
group to the adaptations rendered necessary by these facts. We have
finally in industrial injuries practically eliminated the question of
wrongdoing on the part of the principal or employer and by an elab-
orate system of insurance, based it almost entirely on the principle
of reparation for damage done. Fault is still important so far as the
person injured is concerned. His own gross negligence or wanton
misconduct may cause him to forfeit the compensation he would
otherwise get. But in general under Workman's Compensation laws,
the theory of tort liability has to the extent of the relationships in-
volved, shifted from the desire of somewhat penalizing a wrongdoer,
to that of making whole an injured person.
The degree to which liability without fault, but with damage to
an innocent party, has established itself in our system is illustrated
in a number of ways. Some of them are very ancient indeed. When
Gaius classified obligations arising out of contract and out of tort,
he then added a "miscellaneous" class. Justinian, four centuries later,
broke up the miscellaneous class into quasi ex contractu and quasi ex
maleficio, i.e., "quasi-contract" and "quasi-tort." As quasi-torts, the
Institutes recognize damage done by throwing or pouring material
from windows, responsibility for which was fixed upon the lawful
 INQUIRY INTO THE NATURE OF TORTS 709

possessors of the apartment or house. A second form of quasi-tort in

the Institutes is the liability of innkeepers and carriers which was
taken over into the common law and forced into the category of im-
plied contract.
Many more types of each liability have grown up in recent times,
both at the civil 'and at the common law. In some cases the fiction
of an implied contract is called in, but there can be little doubt that
the law was moved to create a liability by the desire to relieve damage
done and not by that of penalizing a wrong, even the breach of an
imaginary faith.
It is, of course, clear that no system of law has undertaken to make
good every type of damage caused to every person under all circumu-
stances. Not only it has not undertaken to do so, but it would be
literally impossible, since in nearly all cases the law must take from
Peter what it pays Paul, or, as in the case of insurance against indus-
trial accidents, from a great many Peters to pay one Paul or a few
Pauls.
How far will the law go in this direction? Since it must be either
Peter or Paul who bears the loss, if both are innocent of any personal
wrongdoing, how will it determine whether it is to be Peter or Paul?
In the case of industrial "accidents," whether they are really "acci-
dents" or imputable to the negligence of one or another of the many
agents of the person held accountable, the rationale is the following.
The conditions of modern industry are necessitated by the complexity
of modern community life. It is the community whose needs have
created these conditions and it is properly the community that should
bear them. Of the two persons, the employer and the injured workman,
the latter can easily pass the loss on either to the consumers of the
products of that particular unit in the form of price increases, or to
the entire industry by insurance and thus to the entire body of insurers.
Of the two, the latter seems obviously the more reasonable and from
the point of view of economic organization in business, the more
practical.
As a matter of fact, we still see in this situation which is the most
striking departure in our law from the principle of fault as the basis
of liability, the working of the idea that the person held liable, while
not personally at fault, was more closely connected with the tort-
feasor than the person injured was. There is, accordingly, something
here that responds not only to economic demands but to a general
sense of justice. There is a slight feeling that in justice the principal
or master of the wrongdoer, however innocent he may personally be,
710 TEXAS LAW REVIEW

ought to bear the burden of the damage done rather than the person
damaged. Unfortunately for the reasonable ground of this feeling,
the person damaged is frequently, as a fellow-servant, even more
closely associated with the wrongdoer than the common employer is.
It must therefore after all be referred to the economic rather than to
the moral rationalization.
It is further true that in most instances it is strongly suspected that
a fault of the principal could be discovered, if the opportunity to do
so were fully given. But in liability predicated on fault, it is the
plaintiff, i.e., the damaged person who must bear the burden of proof,
and it is idle to suppose that he would be given complete opportunity
to prove his case by the man whom he is seeking to hold liable. In
spite of this, however, it can hardly be said that his strong suspicion-
vehemens suspicio, the mediaeval lawyers might have called it-proves
that even in Workmen's Compensation, it is the fault rather than the
damage caused that is the foundation of liability.
It is clear that if we begin with damage we have at least a concrete
fact. And we have something more. We have a slight prima facie
assumption-a popular assumption, not a legal presumption in any
sense-that a man damaged has some claim to be made whole. This
popular assumption has also some popular conditions. The first is
that the person damaged has been innocent. The second is that the
cause of the damage must not be an unavoidable accident. If there
is a damage-feasor, i.e., a man who by any act of his caused or in-
creased or occasioned the damage, there is, in popular conception, a
wrongdoer. We may say that generally a man is under a moral obli-
gation not to inflict damage on his neighbor by any act which he
could have avoided doing.
But this is not quite true-even for the law. If we take so typical a
tort as trespass, which is the mother of tort actions, a trespass is an
obvious wrong. It deprives the person trespassed against of one of his
most important rights, the right of exclusion, which, however ab-
stractly, constitute a substantial part of his sense of property. It is a
tort, therefore, even though no loss estimable in money damages has
been suffered and equitable remedies are obtainable if the trespass is
likely to be often repeated.
In the case of nuisance, on the other hand, the act of the person
complained of is a tort only if it causes damages, if, that is to say,
it interferes with the use and enjoyment of the complainant. If no
such damage is caused, the act is in itself an essential exercise of the
 INQUIRY INTO THE NATURE OF TORTS 711

other person's privilege. He uses his property as he likes, or abuses

it as he likes, and the freedom to do either or neither is highly valued.
Here the law coincides with popular conception. It is the damage
caused that turned an otherwise legitimate or indifferent or even a
useful act into a tort for which the person damaged may legally de-
mand reparation or which he may prevent or even abate by an
exercise of self-help. When this damage is caused, it involves a
wrong because one of the limitations on property, or better, one of the
duties that make up the complex we call property, is the perfectly
definite and intelligible obligation not to interfere with the ordinary
use by a neighbor of his property. This is expressed in the formula
sic utere tuo ut alienum non laedas. There is no tautology here if the
tuum is taken as a concrete object of property rights and the alienum
as an abstract right in relation to property.
Evidently the doctrine of nuisance is a nice balance between the
constituents of tuum and alienum. If a man may not do anything he
likes with his own, he suffers a loss in property. What we have really
is the fact that one loss, being a restriction on acting, is not rated as
highly by the law as the other which is a positive detriment. If the
restrictions imposed are really serious, if the damage-feasor cannot
really use his own property effectively at all without this interference
with his neighbor's enjoyment, it will often give a different aspect to
the question.
Take the California case of Kall v. Carruthers.- Carruthers grew
rice on an upland, and could do so only by flooding his lands. The
result was that despite his utmost care water seeped into the lands
of the plaintiff, Kall, and ruined his orange crop. The court found for
Kall, who had been planting oranges long before Carruthers under-
took to grow rice. Since growing rice is not wrongful in itself and
even has a certain public end in view, what was the tort? Is there a
duty that no use, otherwise legitimate, may be made of Whiteacre
which restricts an already existing use of Blackacre? Would the
court-a California court-have required Kall to grow oranges at his
own risk, if Carruthers had been growing rice before the oranges were
planted? The situation is obviously like Rylands v. Fletcher.5 The
court does not quote that case, but puts it squarely on the doctrine of
nuisance and sic utere tuo, a maxim which in this case might have
4211 Pac. 43 (Cal.App. 1922).
5
1n the Exchequer, as Fletcher v. Rylands, L.R. 1 Ex. 265 (1866); in the House
of Lords as Rylands v. Fletcher, L. R. 3 H. L. 330 (1868).
712 TEXAS LAW REVIEW

been applied against the plaintiff as well as for him. They throw in
the element of priority, but half-heartedly. If it is to be taken seriously,
it can only mean that the owner of Whiteacre by hastily putting his
land to a special use can effectively limit the use to which Blackacre
can be put.
Rylands v. Fletcher would carry the same difficulty, if the stress is
laid on the novelty of the reservoir placed there by Rylands. But if
it is based on the assumption that the reservoir was an essentially
dangerous instrumentality, the risk of which must be assumed by the
man who placed it on the land, as is commonly done, we should be
dealing with an obvious fiction, always highly undesirable in law or
in almost any other social relationship.
We shall probably have to return to the elements of priority. It
carries the duty of causing no damage considerably further than the
Aquilian action did. There is no wrongful act in the sense of a
violation of an accepted standard of conduct. The creation of an
affirmative duty to avoid damage to existing conditions which pre-
vail in the neighborhood, to make certain that no person suffers loss
through changes made by others about him, is probably more than the
law intends to do. If it did, it would raise neighborliness, which
is at best a moral obligation, to a close connection with the law. A
violation of the duties of neighborliness is an accepted moral wrong,
but the violation in morals, as in law, we must remember, is created
only by the damage done.
The notion that an innocent sufferer should be made whole by the
man who caused the suffering-except in the case of wholly unavoid-
able accidents-has deep roots in popular feeling and has made
extensive strides toward legal recognition. Against it must be placed
the resistance that the law has offered to any cause of action that is
not based on fault. If nuisance leads us to an increasing valuation
in law of the moral duty of neighborliness, there are other common-
law doctrines which stress the fact that generally more than mere
loss suffered is necessary to make an actionable wrong between neigh-
bors. There are many losses due to preventable causes that are none
the less damnum absque iniuria. Sinking a well on one's ground that
sucks up all your neighbor's water, lowering a head of water for your
own purposes that cuts off a neighbor's supply, the fairly destructive
privileges of upper riparian owners, spite-fences, obstruction of lights
in the absence of an easement-all these indicate a theory that runs
counter to inferences which might be drawn from an overextension
 INQUIRY INTO THE NATURE OF TORTS 713

of the doctrine of Rylands v. Fletcher; and gives a large range of

self-regarding actions and even malicious actions which are not torts
even if they cause damage.
Is the foundation of this common-law attitude to be sought less in
a desire to attach liability only to fault than in a tendency to give
owners a free hand over their property? If that is the case, it is some-
thing that developed in the seventeenth century when the Roman
notion of dominion with its ius abutendi was encroaching on the com-
mon law's feudal doctrine of tenure with its reciprocity of obligation
and its abhorrence of waste. In any case it is clear that sic utere tuo
and ex damno absque iniuria non oritur actio are conflicting lines of
doctrine and make a single line of development impossible.
We have seen that in nuisance we are compelled to balance the
freedom of the use of Whiteacre against a conflicting freedom of the
use of Blackacre, and strike a balance in favor of an existing or normal
use against a novel or highly individual use. That balance is struck
more drastically when a public convenience is balanced against a
private loss. The erection of railroads produced widespread and def-
inite damage to the enjoyments of surrounding property. Cinders,
smoke, noise, made many peaceable residences scarcely peaceable any
longer. The mere presence of a railroad often substantially reduced
the value of the property immediately adjoining it. The building of
a jail or an asylum might do the same. That the balance between
public gain and private loss has been properly struck here, the law has
no doubt. Popular estimation views it differently and has found ex-
pression in statutory claims for compensation in special cases.
There is further a large field of relations which by their very nature
implied that damage must result to one or the other of the persons in-
volved. This is the field of commercial competition, and commercial
competition is an essential part of our economic system. Evidently the
purpose of competition is to gain at the expense of some one else,
and all devices used for that purpose have until recently been regarded
as legitimate-if they avoid force or fraud-no matter how much
damage was done. In this case clearly the emphasis is, or was, wholly
on the wrongdoing of a competitor and not on the damage done.
Newer concepts in the fields of commercial relations have resulted
in rules of unfair competition which have been to some extent, em-
bodied in statutes. In the main, the determination of whether the
competition was in fact "unfair" has been left to courts and to ad-
ministrative tribunals. But the extension of the rules of unfair
714 TEXAS LAW REVIEW

competition so that they will include not only force or fraud, but many
acts that are in other situations not illegal, does not change the tort-
concept in this field. It still emphasizes wrong-doing rather than
harm suffered.
At the same time it must be noticed that to include among wrongful
acts situations which are wrong in a less obvious sense than acts
formerly called so, to make acts wrongful which would normally be
called merely "unfair" or "improper," is a method which can be used
to whittle the concept of wrong-doing away until its characteristic
element is the harm inflicted.
There is one situation in which, so far as the law is concerned, the
presence both of negligence and of loss does not create the right to a
satisfactory legal remedy. That is the case of a claim for negligent
injury by the employee of a charity or by the employee of a public
corporation. Many of these situations have been provided for by
statute which abrogated what has always seemed to the American pub-
lic an unjust privilege. Since it is a privileged and exceptional situa-
tion growing out of an historical immunity, it plays little part in the
growth of a tort concept, any more than the anomalous fact that the
worst of losses, loss of life, was not until modern times permitted to
create a remedy no matter how great and obvious was the wrongful-
ness of the act that had caused death.
The assessment of damages in either contract or tort is a technique
and depends on many subjective elements, but so far as there is a
difference between damages in torts and in contract, it is clear that
tort damages tend to be higher than contract, and that is surely so
because there is a sense that the tort-feasor has done a greater wrong
than the contract-breaker and should at least to some extent be pun-
ished.
We may even go further. All juries in negligence cases are aware
that the damages will in general be paid not by the actual tort-feasor,
but by the insurance company which has insured him against public
liability. This tends to increase damages. Then, again, most juries
are aware that a substantial percentage of the damages awarded will
go to the attorney for the plaintiff, if he is successful. Almost in-
evitably, they will allow for that in determining damages.
There is nothing to indicate that the tendency to rate tort damages
in this way which is appreciably beyond the actual loss suffered in
calculable money values, is lessening. And so long as it exists, the
penal element in tort obligation remains a real factor.
 INQUIRY INTO THE NATURE OF TORTS 715

We have, therefore, in the concept of tort at common law a complex

aggregation of motivating ideas. Moral and social valuations create a
standard of conduct and to violate it is a wrong. Originally the
punishment of this wrong was left to the injured party. Now, in
many cases-it is assumed always in sharply defined cases-com-
munal authorities will inflict punishment. But to some extent even
when the communal authorities intervene, the injured party is per-
mitted to cumulate a penalty on it for his own benefit, generally in
addition to strict compensation, but often without reference to com-
pensation.
And on the other hand, there are cases in which the wrong-a con-
ceded wrong-does not create a claim for anything either by way of
penalty or as formal compensation, because no actual harm was
inflicted. The wrongdoer escapes by the lucky accident that through
no fault of his, his prospective or possible victim has escaped loss.
It is true that if the act is likely to be repeated, legal redress by way
of injunction is possible. And even if it is merely threatened for the
first time, an injunction may sometimes be had. But for many pur-
poses the element mentioned in many of the citations here given,
the element of damage done, is treated as an essential. Otherwise it
is iniuriaabsque damno.
Indeed the damnum element is so important that despite the ex-
istence of a large group of cases of damnum absque iniuria, the
tendency is to lessen rather than extend this class. First of all, by
vicarious and imputed liability, compensation-generally, to be sure,
strict compensation-may be obtained from persons who are not tort-
feasors at all and who, in legal as well as popular estimation, ought to
bear the loss rather than the person injured.
Secondly, the "new and nameless torts" are often, though not al-
ways, created by the gravity of the harm done, rather than by the
wrongful character of the act. The tendency to "imply" or "assume"
a wrong grows out of the feeling that the damage feasor has after all
caused a loss, even if he has done nothing that he would have reason
to regard as wrongful. There are situations in which vigilance to
avoid harm to another is a duty and ignorance of it is not quite enough
to escape legal liability. The doctrine of nuisance and Coke's formula
of sic utere tuo can be extended, and have been extended to cover these
cases.
Is it necessary to put some of these heterogeneous elements into a
single formula in order to obtain something that will satisfy the law?
716 TEXAS LAW REVIEW

When all is said and done, the facts of social and commercial life
involve collisions that do damage. Most of them are preventable.
We are not yet ready to establish a society in which every man is his
brother's keeper and under an active duty to protect him from harm.
Since we are not, we must put up with preventable harm done that
carries no legal liability. Much of it can be alleviated by an ex-
tension of the principle of insurance in which ultimately it may be
the burden of such preventable harm will be borne by the community.
But the converse of this, that wilful or negligent wrongdoing may
escape liability is one that modern society tends to restrict. New
types of wrongdoing need, it is true, a certain intermediate period
in which they are recognized by the moral sense before the law will
do anything about them. But once the recognition is established there
is little reason why calculable harm should be made a test of liability.
We may take the development of copyright protection as a model.
Originally only calculable damages were permitted even if the viola-
tion was admitted. At present, by statute, a penal sum is recoverable
for each case of infringement whether it actually caused loss or not.
The extension of the active duty to prevent harm so long as it is
not exaggerated into an impracticable degree of social solidarity coupled
with the revival of a moderate penalty usually recoverable as damages
for most instances of wrongdoing that only by accident escape causing
loss, will still leave a no-man's land within which there is no liability
either for harm inflicted or moral duty disregarded. It is not likely
that in human societies this margin will ever be completely eliminated.
If we were formulating a law of torts for a new jurisdiction, we might
set up the following propositions.
1. Any act which renders the actor punishable by public authority
and which causes damage to any person other than an accomplice
or accessory, creates an absolute liability to pay that person compensa-
tiou.
2. Any other act which causes damage to a person creates a prima
facie liability to pay compensation.
3. The liability does not exist under 2, if the damage-feasor has
done all that could reasonably be expected of him to avoid the damage
or had no opportunity to prevent it.
4. He is not reasonably expected to prevent damage under 2 if he
is doing no more than is necessary to protect himself or protect some
property interest or some legitimate interest in the safety and rights
of another person.
 INQUIRY INTO THE NATURE OF TORTS 717

5. The liability does not exist under 2 if the person damaged has
substantially contributed to the act which caused the damage.
6. A person is prima facie liable for damage caused to another, if
the damage is caused:
a. by an agent acting under his orders or while conducting his
business;
b. by an irresponsible person whose conduct he had the physical
power and the legal right to control;
c. by an inanimate object which he had the physical power and
legal right to control.
7. The liability does not exist under 6, if it would not have existed
had the person charged been himself the damage-feasor.
8. Damage consists in a bodily attack or the threat of a bodily
attack; an attack on reputation or the threat of such an attack; the
destruction or impairment of property or the threat of such destruc-
tion or impairment; the deprivation or the impairment of an interest
in property or in a chose in action, or the threat of such deprivation
or impairment; the deprivation or impairment of a family relation-
ship or the threat of such deprivation or impairment.
9. In case of a threat as described under 8, if the threat is of an
imminent act and if money damages are likely to be inadequate, the
threatened person may enjoin the act.
A brief commentary may add little to this quite speculative deter-
mination. If, as I have attempted to set forth, we must have some
basis for calling an action wrongful, we can surely not avoid including
in that classification, acts which a public statute has rendered punish-
able by fine or imprisonment. Mr. Lowndes6 finds that it is excessive
to predicate tort liability on every violation of criminal legislation,
and in this he is supported by Mr. Prosser.7
I cannot find their reasoning convincing. The fact that the legis-
lature did not expressly add tort liability to the criminal penalty is
surely not conclusive. Very few torts were established by statute.
Nor do we need to presume that the legislature had anything about
it in mind. The tort liability follows from the wrongful character of
the act, overwhelmingly established by the fact that the act is made
a crime.
The only other comment that seems clearly necessary is that which
concerns Sections 3 and 4. I suggest that any harm caused by one
GLowndes, Civil Liability and Private Action (1914) 27 HAv. L. REV. 317.
7HANDBOOK OF THE LAW OF TORTs 265-266.
718 TEXAS LAW REVIEW

person to another throws upon the damage-feasor the burden of prov-

ing that the harm was accidental or unpreventable or justified self-
protection. That, I think, is the popular view and it seems to me the
reasonable view as well. It is not the accepted view of the courts in
most cases, but I am strongly of the opinion that it plays a part both
in determining even in courts whether liability exists and what repara-
tion is to be demanded.
A speculative inquiry need not trouble itself to prove to courts that
what is proposed is already the law. It is enough to suggest that it
would appreciably simplify the law. Many of the difficulties have
been caused by the split personality of the law which wishes to do
something for persons injured by wrongful acts but dares not trust
its own judgment about what is wrongful. To begin with the fact of
damnum, as popular feeling does, and require an act that causes
damnum to be justified, imposes no greater burden than that which
men of good will assume without legal compulsion. After all there
is legal authority-even if in a parallel system-that the standard of
conduct is what honest men habitually do, ut inter bonos bene agier
oportet.