Oliver Wendell Holmes. Very likeh' the good sense of courts would generally have led them to the same result in the particular case, articulate theory or none. But it needs no argument to show that unless the place in the law of torts of the particular state of facts under consideration can be viewed in the light of a general theory, the decision, however sensible, must be more or less uninstructive and confusing. The Re ports of Massachusetts, beginning with the 1 34th volume, are full of examples of Judge Holmes' method of dealing with a tort. Two illustrative cases must suffice. In the case of Hawks v. Locke, 139 Mass. 208, the plain tiff's swine were infected with a destructive disease by swine which the defendant had introduced into the plaintiff's pen, under what was equivalent to an implied license from the plaintiff. At this time nobody knew, or had reason to think, that the swine were diseased. In an admirable opinion, Judge Holmes holds the defendant not liable, be cause his conduct did not under the known circumstances tend to the plaintiff's damage. The court might say so much without the aid of a jury. In Cutter v. Hamlen, 147 Mass. 471, the defendant leased to the plain tiff for occupancy a house in which there had been diphtheria. The plaintiff and several members of his family contracted the disease, and some of them died. The house had been fumigated to the satisfaction of the Board of Health before the plaintiff's occupation be gan. The drains were defective, and there was evidence that the defendant knew this fact, and that the plaintiff did not know it. In a very interesting opinion Judge Holmes, speaking for the court, declares that, al though the defendant was bound at his peril to know only the teachings of common expe rience, and was not bound to foresee results which only a specialist would apprehend, nevertheless the fact that there had been diph theria in the house, coupled with the fact that the drains were defective, might have war ranted the jury in finding that there was a
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special danger from the drains, and that the landlord ought not to have assumed that this peculiar danger was removed by what the Board of Health had done. Here the ques tion of the defendant's liability might have been decided either way. If lay in that penumbra or debatable land which is the region of the jury. Judge Holmes and the court over which he ultimately came to preside have had a singu larly felicitous opportunity to explain one dimension of the true measure of a tort in a remarkable series of cases dealing with the common law rights of employer and em ployed. The history of the struggle in the courts of Massachusetts between labor and capital (if a somewhat threadbare phrase may be permitted) is of absorbing interest. Limitation of space forbids the analysis of more than the most recent cases. In Vegelahn v. Guntner, 167 Mass. 92, the plaintiff sought to restrain his striking workmen from maintaining a patrol in front of his shop, the purpose of which was to prevent the plaintiff from getting new workmen to fill the strik ers' places, and thereby to prevent him from carrying on any business until he adopted a schedule of prices exhibited to him by the strikers. A preliminary decree was entered, granting in substance the prayer of the bill. At the hearing before Judge Holmes, it ap peared that the mean's adopted for prevent ing the plaintiff from getting workmen were, first, persuasion and social pressure; sec ondly, threats of personal injury or unlawful harm to persons seeking employment or em ployed. Judge Holmes made final the pre liminary injunction in so far as it prohibited actual or threatened violence, or persuasion to break existing contracts. Declining other wise to enjoin the employment of persuasion and social pressure, he reported the case to the full court. After elaborate argument, a majority of the court ordered that the in junction should stand as originally issued, without the modifications introduced by
