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in the absence of negligence or wrongful intention. Professor Wigmore,35 speaking of the principle enunciated by Blackburn, J., in Rylands v. Fletcher, says:
“... the tendency may perhaps be said to be in many States to restrict to as few as possible the classes of situations to be governed by the principle. An example of the latter attitude is found in the masterly opinion of Mr. Justice Doe, in Brown v. Collins, 53 N. H. 442."
If there were no modern legislation which might indirectly influence the views of judges, we should be inclined to predict that there would be a gradual diminution in the number of cases where absolute liability is imposed on non-culpable defendants, and it would even be possible that ultimately courts might cease entirely to hold defendants liable in cases of non-culpable accident.
But there is modern legislation, enacted almost wholly within the last twenty-five years, which may indirectly operate to check any further judicial tendency to exonerate in cases of non-culpable accident, and which, conceivably, may even cause courts to reverse the modern common law doctrine — that fault is generally requisite to liability. Much of this legislation is of the class usually described as Workmen's Compensation Acts. These statutes create a duty on the part of employers to compensate workmen in many kinds of industry for accidental damage, irrespective of any fault on the part of their employers or their fellow servants. This legislation singles out workmen employed in an undertaking and constitutes them a specially protected class, while overlooking other persons damaged in the same accident whose claim stands on at least equal ground.36 The result reached in many cases under this legislation is absolutely incongruous with the result reached under the modern common law as to various persons whose cases are not affected by these statutes. The theory underlying most of the statutes, the basic principle, is in direct conflict with the fundamental doctrine of the modern common law of torts.37 The statutes show "a distinct revulsion from the conception that fault is essential to liability”;
7 Harv. L. Rev. 455, n. 3. 36 See four examples in 27 Harv. L. REV. 237-38.
37 See ibid., 245-47. Under these statutes “there is a legal liability without fault, a liability much more extensive than that which grew out of the rule respondeat superior, qualified as that was by the fellow servant rule and the theory of assumption of risk.” Judge Swayze, 25 YALE L. J. 5.
a distinct reversion to the earlier conception, that he who causes harm, however innocent, must make it good.38
Here is an incongruity between statute law and modern common law as to a matter where each applies to a large class of cases.
Will this incongruity be permitted to continue permanently? 39 What available methods are there for removing it? Is not one conceivable method this: by decisions of the courts, repudiating the modern common law of torts that fault is generally requisite to liability, and going back to the ancient common law doctrine that an innocent actor must answer for harm caused by his nonculpable conduct? What arguments can be urged to induce courts to make such a change?
These questions have been discussed by the present writer more fully than is possible here in an article on “Sequel to Workmen's Compensation Acts."'40
What are the objects to be aimed at in arranging and classifying the law?
When is it expedient to make changes in existing classifications or in legal nomenclature?
Some of the best modern writers assert that the object of classification is practical convenience, not logical or scientific order, and that changes from the existing arrangement or nomenclature should be made only for very weighty reasons. “The end sought," it is said, “is a purely practical one”; “not symmetry, elegantia, or logical order for its own sake.” The existing classification should
88 The great majority of these statutes do not purport to apply only to extrahazardous occupations. See 27 Harv. L. Rev. 344-45, 348, 363.
39 “Such inconsistencies must eventually lead to a change that will assimilate the rules of liability in the different cases." Judge Swayze, 25 YALE L. J. 6.
27 Harv. L. Rev. 235, 344. Special reference may be made to pages 250, 251, 363, first sentences on page 367, and last paragraph on page 368.
41 As to the subject of classification, it has recently been said, “As a matter of fact there is a remarkable poverty in English legal literature of works dealing with the subject at all.” Mr. H. J. Randall, 28 L. Quart. REV. 304. "The legal literature of England has many merits, but it is singularly deficient in orderly statements of broad principles.” 22 L. QUART REV. 100. “English law possesses no received and authentic scheme of orderly arrangement. Exponents of this system have commonly shown themselves too little careful of appropriate division and classification, and too tolerant of chaos. Yet we must guard ourselves against the opposite extreme, for theo retical jurists have sometimes fallen into the contrary error of attaching undue importance to the element of form." SALMOND, JURISPRUDENCE, 4 ed., Appendix iv, 481.
not be changed simply “to force a symmetrical grouping."42 Mr. Salmond says:
"In the classification of legal principles the requirements of practical convenience must prevail over those of abstract theory. The claims of logic must give way in great measure to those of established nomenclature and familiar usage: and the accidents of historical development must often be suffered to withstand the rules of scientific order." 43
Sir Frederick Pollock says:
“Practical workers want to find things grouped not only, nor chiefly, in a logical order, but more or less nearly as they occur in practice; nor will any real or supposed propriety of logical division reconcile them to being constantly sent from one book to another. Law does not consist of a number of self-contained and mutually exclusive propositions which can be arranged in a rigid framework.” 4
Closely akin to the question of changes in legal classification is the question of changes in legal nomenclature. Sir Henry Maine has said that “legal phraseology is the part of the law which is the last to alter.” 45 All changes of phraseology involve temporary confusion. Hence they should not be made "for the mere sake of theoretical or philological accuracy.”48 But on the other hand, it is impossible to ignore “the enormous influence of terminology on thought.” “Loose definitions encourage loose conceptions." 47 There are various subjects upon which great confusion exists and will continue to exist, unless and until more exact phrases are substituted for those in popular use. Thus Mr. Bower gives a schedule of sixteen expressions in use in the law of defamation, “which are either meaningless, or incorrect, or misleading, or employed in a number of different senses."
Sometimes it is, upon the whole, expedient that new terms should be substituted for old ones. A compromise is occasionally attempted. The old term is retained, but a new meaning is
ERRY, LEADING PRINCIPLES OF ANGLO-AMERICAN LAW, $ 582; Professor Wigmore, 8 Harv. L. Rev. 377. 43 SALMOND, JURISPRUDENCE, 4 ed., 481.
1 ENCYCLOPÆDIA OF LAWS OF ENGLAND, 2 ed., Introduction, 3. 4 MAINE, ANCIENT LAW, 1 Eng. ed., 337–38. 46 See BOWER, CODE OF THE LAW OF ACTIONABLE DEFAMATION, 487. 17 Ibid., Preface, ix, 487. 43 Page 489.
affixed to it. But this method is apt to result in great confusion and involves frequent and lengthy explanations.
When changes are made in legal classification or nomenclature there is almost sure to be an uncomfortable transition period. Confusion and increase in litigation are likely to temporarily result “from the dislocation of established associations" and "the introduction of new technical terms.” Hence such changes ought not to be made upon slight grounds. But there are cases where there are weighty reasons for the change and where the result in the long run would be highly beneficial. Here the objection of temporary inconvenience should not be allowed decisive force.49
What changes from the old forms of classification and nomenclature should now be made as to the general topics we have been discussing? Should any changes at all be made at the present time?
It was said, earlier in this paper, that at the present time certain divisions should be recognized as now existing in the law as held by the courts. And an attempt has here been made, in a very general way, to mark out the boundaries of each division and to enumerate the leading subtopics or cases falling within each. But we have also recognized the possibility, not to say the probability, that the scope of one division (absolute liability) may be materially lessened, it being possible that the cases now classed under absolute liability for accident may be largely, if not wholly, transferred to the division where liability attaches only in case of fault. In such an event, the cases remaining under absolute liability for accident might constitute comparatively insignificant exceptions to the rule that fault is requisite to liability. 50
19 Professor Terry, who in such cases is inclined to allow “very little weight” to “objections of novelty and strangeness and temporary inconvenience,” adds this limitation: “There may be errors and false classifications which have struck such deep root in our law that it would be better not to attempt to tear them up." TERRY, LEADING PRINCIPLES OF ANGLO-AMERICAN Law, $ 584, p. 613.
50 We have here been speaking solely of absolute liability in cases of non-culpable accident. But this constitutes only one of the three classes of cases, heretofore usually grouped under Tort, where the law has sometimes imposed absolute liability in the absence of fault. The other two classes are: (a) Liability for non-culpable mistake; and (6) vicarious liability for the wrongful acts of others. (See ante, pp. 325, 326, 327.) Even if the courts should cease to impose absolute liability for non-culpable accident, there would still remain the above classes (a) and (b); and in cases of wide extent arising under these classes the courts are likely to continue to impose absolute liability.
If the law is in a transition state as to accident, why not postpone attempts to reclassify or rearrange until the law has become finally settled on a new basis? Why attempt to classify or arrange in accordance with the law as now held by the courts if the existing law is not likely to be permanently adhered to? In view of the possibility of great changes, is it worth while to take time now to consider upon what system the law, as now held by the majority of courts, should be classified?
We think that it is desirable; and for at least two reasons:
1. Changes in the present law may be a long time in gaining a firm footing.
2. To delay attempts to classify until the law is finally and forever settled would be to postpone eternally.51
Those who regard the distinctions we have attempted to make as being intrinsically correct, and also as being of sufficient importance to justify some change from the old forms of classification and nomenclature, may differ as to the extent of the change and as to the method of expressing it.
As to such changes in the classification of topics heretofore usually grouped under Tort, three systems (at least) can be suggested, each differing from the others as well as from the old method.
System 1. Retain Torts as a general title. Include under it all cases heretofore grouped under that general head. But divide these cases into two distinct classes, each of which is to be discussed
Under the class of non-culpable mistake, we think that the courts will continue to impose absolute liability upon one who intermeddles with tangible objects of property under a bona fide and non-negligent mistake as to the title. Under the head of vicarious liability, we think that the courts will continue to hold a master absolutely liable for the tortious conduct of his servant while the servant is acting in the course of his employment, although the master was in no fault as to the selection of the servant or as to the orders given to him. It is true that the intrinsic correctness of both the last-mentioned doctrines has been questioned; but without taking time or space to here discuss the matter, we venture the prediction that both doctrines will be adhered to by the courts.
61 “The truth is, that the law is always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow.” HOLMES, Comvon LAW, 36.