1

house might negligently let a stick fall at my feet, as I was passing along the street, which startled but did not hit me, and there would probably be no liability for the act; but if he threw the stick at me, with the same result, he would be liable, for an intended wrong is more likely to do harm than one not intended. But, rather inconsistently, mental distress may be considered as an element in damages in any case where a right of action is shown regardless of such distress.

2

Finally, the fact that a tort is redressible in damages serves to distinguish the offence from a crime; which is redressed by prosecution on behalf of the public for the purpose of punishing the accused, by imprisonment, fine, or forfeiture. But most crimes attended with loss may also be treated as torts. Homicide is an exception, apart from cases falling within statute. It will be seen, then, that the law of torts, which we have found overlapping the law of contracts on one side, overlaps on the other the criminal law. But the greater part by far of the domain of tort lies between the two extremes.

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In explanation of the examples given throughout the general text following, it is to be observed that when a particular act or omission under consideration is said to be a breach of duty,' or of 'legal duty,' or of the 'duty under consideration,' it is assumed that other elements of liability if there be such are present. Further, breach of duty' or the like implies a right of action in damages. And the term 'damage,' standing alone, is generally used in the text, as well as in the

1 Compare Victorian Rys. Comm'rs v. Coultas, 13 App. Cas. 222, fright upon danger of collision with a railway train.

2 Compare White v. Duggan, 140 Mass. 18, 20.

8 See Warren v. Boston & M. R. 163 Mass. 484, 487; Harvard Law Review, January, 1894, p. 304.

'Statement of duty,' in the sense of 'special damage,' actual loss. The Statement of duty' it may be added, is intended to suggest to the student a prima facie case.

§ 3. OF PRIVILEGE.

It remains to set forth specifically the meaning of 'privilege.' The term, as it will here be used, imports a defence from liability to an action. It is to be taken in a broad sense, broader than that in which it is commonly used. It is used as a convenient designation of all that class of defences whereby one has immunity or exemption from liability for conduct which but for the immunity would be tortious. In the broad sense privilege may be said to be a limited permission to inflict (otherwise wrongful) harm upon another, and will therefore include permission to do things not in point of fact harmful, such as violating a bare legal right.

As we have already stated, privilege may be of a nature to include right. A fireman has permission by law to enter premises for the purpose of putting out a fire.1 So far the case is deemed to be one of privilege merely.2 But the fireman may be invited,' or he may be commanded by positive law, to enter; in either case he would not merely be exempt from liability for the necessary consequences of his entry, he would have actual rights against the occupant; he must have safe entry and exit, except as the fire itself makes entry and exit unsafe. The occupant will now owe to the fireman the duty to have the premises (except as just stated) in fit condition to enable the fireman to perform his duty; and if the fireman suffer harm by the occupant's breach of such duty, he has an action.

1 Gibson v. Leonard, 32 N. E. Rep. 182 (Ill.); Beehler v. Daniels, 27 L. R. A. 512 (R. I.). 2 Cases just cited.

The conception of privilege embraces permission of two kinds: first, permission by the party,' that is, by some person granting it; and, secondly, permission' by the law,' or permission paramount, since it is independent of the will of the person against whom it is granted.

In the law books privilege in both senses is found under various designations. In the law of defamation it is called 'privileged communication;' in the law of assault and battery it is called 'self-defence,' for one thing; in the law of trespass to property it is called 'license; and so on. Often the word 'justification,' taken from the language of pleading, is used as a general, synonymous designation of the idea. In substance, however, it will always be found to come to the case of that sphere of activity in which one is permitted under reasonable limits to inflict harm upon another.

In regard to the ground upon which privilege rests, nothing more than the general ground itself can be stated here; upon what particular ground it rests in special cases, or in special classes of torts, can only be shown when the special subject arises in the 'Specific Torts' following this general part. The first class of cases of privilege, by the party,' calls for little comment here. The ground of exemption is consent, which is often expressed by a maxim adopted from the Roman law, 'volenti non fit injuria' - the man who consents to a wrong (injuria ') is barred of an action for it.1 Privilege 'by the law,' or privilege paramount, finds its origin either in duty or in interest, and its limits in what is reasonably deemed necessary for the purpose to be accomplished by it.

1 There is some limit to the validity of consent itself, but no very satisfactory ground has as yet been reached. Most authorities hold

Duty as a ground of privilege may be official or quasiofficial, or only moral, that is, of imperfect obligation. It requires no explanation to show that one must be protected from the necessary consequences, however harmful, of discharging a duty which one is expected to perform. A policeman making report to his superior, an officer serving process, a fireman endeavoring to put out a conflagration, must be exempt from liability for everything done in the discharge of his duty. The law could not be administered upon any other footing in the first and second of these cases; and in the third it would be difficult to find firemen to protect our homes if the law were otherwise than it is.

That privilege may also arise from moral duty is not so obvious; still the fact rests in principle as well as upon authority. The case springs in essence from an instinctive desire for the preservation of the race, a desire akin to that of self-preservation and equally wellfounded. It is not directly necessary to put the case that agreements between shipper and common carrier to exempt the carrier from liability for the negligence of its servants are invalid, on the ground that the shipper is virtually in the power of the carrier; which is reasonable doctrine. But it is also held by most authorities that A's consent to B's committing a crime against him will not bar an action by A against B for damages sustained thereby. Thus either party to a fight may sue the other for assault and battery, notwithstanding consent. Shay v. Thompson, 59 Wis. 540; Adams v. Waggoner, 33 Ind. 531; Bell v. Hansley, 3 Jones, 131; Commonwealth v. Collberg, 119 Mass. 350. But see Goldnamer v. O'Brien, 33 S. W. Rep. 831 (Ky.), refusing a civil action for damages from attempted abortion, on the ground of assent. Violation of the criminal law is deemed so unlawful that consent to violate it is unlawful. Of course consent of the parties could not bar a prosecution by the State; but that is another thing. Suppose the State itself had consented to the crime?

Consent or want of consent has nothing to do with the case when the act or omission was lawful; and consent obtained by fraud is no consent in law. Dain v. Wycoff, 7 N. Y. 191, 194, as to the last statement.

upon the ground of political prudence, which sees in it the welfare of the State, though that plainly is a consequence of the first ground, and is the final test of duty. I may well enter my neighbor's premises to rescue his beast from the mire; much more may I enter to save human life; to hold me responsible for harm done in the reasonable discharge of such a duty would be to find the existence of a relation between my neighbor and me which would tend to anything but to bind us together into the organism which we call the State. Where moral (or official) duty shades into pure voluntarism, becoming impertinence, may often be a difficult question; but such considerations cannot avail against the existence of the immunity.

When it is said that privilege may grow out of interest, the word interest' must be taken in the sense, it seems, of legal right, or something in the nature of legal right. I may have a duty towards my neighbor as my neighbor, from an instinct of humanity; but I have no interest in him simply as my neighbor, except perhaps the shadowy interest in his welfare as one of the multitude of men composing the State, and so sharing with me its burdens. The interest required must at all events rise higher than desire or even anxiety for another's general welfare.1

§ 4. OF PERSONS: PERSONS IN EXECUTIVE, Legislative, OR JUDICIAL POSITION; PERSONS UNDER DISABILITY; CORPORATIONS; MASTER AND SERVANT; PRINCIPAL AND AGENT; INDEPENDENT CONTRACTORS.

All that has gone before relates to the law of torts in what may be called its primary manifestation, in other words, between citizen and citizen as such. But that does

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1 See Sheckell v. Jackson, 10 Cush. 25; Cases, 178.