i36
THE GREEN BAG
sense that the act in question was one of some ground for saying that such a matter amounts in most cases practically to the full legal right. Malice as an evil motive or the like, has same thing as malice in the ordinary sense. accordingly a proper and necessary place, A man can hardly be said to have no motive even in the present law of torts. This fact at all when doing an act in reckless, wanton, has not always been understood, or, when or heedless disregard of another's rights; if admitted, its significance has not been fully he has so done the act, he has done it under the • idea — motive — that it may afford . appreciated. The term is used in the books in different pleasure to him or someone else, or because and confusing senses, which accounts for he cares not for any harm that may follow, much of the misunderstanding in regard to and in either case there is usually something the place of malice in the law, especially in closely akin to an evil motive in his conduct. the law of torts. It has, indeed, been Acts done in such a spirit might well be treated as an exceptional element of liabil considered to destroy any permissive right ity upon the idea that in some cases it over to do them. It is not always true, however, that to do turns full legal right,1 a mistake as the fore going remarks, if sound, plainly show, except an act in reckless, wanton, or heedless dis as this may be the will of the dominating regard of another's rights is to do it with force in society. An explanation of the an evil motive. To prosecute a man with knowledge that there is no just cause of various uses of the term should be made. The term has been used, and still is prosecution would afford an example. This occasionally used in the law of torts and might be done in a reckless, wanton, or elsewhere in at least four different senses. heedless spirit with what is commonly It is used to signify (r) an evil motive, as regarded as a good motive; it might so be in ordinary speech; (2) reckless conduct, or done with the motive of gaining a reward. wanton or heedless disregard of consequences A man again might tell a falsehood with the where there is or should be knowledge that sole motive of helping a friend, indeed with mischief will follow; (3) in the case of false regret that harm to any one should follow. statement in general or by suit, that this It is clear that such cases satisfy any require was made with knowledge of falsity; (4) ment in law of proof of what is called malice nothing more than knowledge or notice of in fact. The result, so far, is that the the existence of some special relation which conception of malice as evil motive does not accordingly the person said to be guilty of quite meet the legal idea of the term. the "malice" interrupts. "Malevolence" has been suggested,1 though A remark has already been made on the that too falls a little short. On the whole, second of these meanings of the term; in the it appears to be enough to say that, for the law of torts to do a harmful act with reckless purpose of overturning permission, the term or wanton disregard of the consequences, or "malice " may properly be used in any of the heedless of them when they are present to three senses above given. the mind, is considered as satisfying the Malice, in the fourth sense, is a different purpose of malice equally with doing the thing altogether. To make B liable for act under an evil motive.2 And there is interrupting a certain relation between A and C, as for instance that of master and 1 It actually does overturn such right in some cases, according to New Hampshire authority and the Roman law. Ante, p. 134, notes. 2 Gott v. Pulsifer, 122 Mass. 23;;; Wren v. Weild, L. R. 4Q. B. 734, 736; Allen v. Flood, 1898, A. C. i. It is a curious instance of the likeness of things
different that recklessness, wantonness, and the like are also considered sufficient to satisfy an allegation of negligence. 1 Moran v. Dunphy, 177 Mass. 485; 39 N. E. Rep. 125, Holmes, C. J.
