140
THE GREEN BAG
upon the court to decide in his favor, upon the very claim of A, as it stands, and the court would uphold him. This the court would do on the ground that there was (not a particular rule to be shown by justifying, but) a general rule applicable to everybody — that for the consequences, though intend ed, of a true statement, no one is liable by municipal law. The same would be true of the action called slander of title, and of the action for slander or libel, of the action for malicious prosecution, and probably of other cases. In none of these cases can an action be maintained where it does not appear or is not presumed that what was said or done was false; and that for the same reason in each case, to wit, because of a general rule of law, not of a particular rule applicable only to persons bringing themselves within it by showing facts in ' ' justification. " If, then, the case is to turn on logic, there is too much of the law which would have to be treated as exceptional, to make good the rule in question. The defendant B is protected in such cases because indeed he has a right to say and do such things, according to common law reasoning. And so A cannot make a prima facie case against B in the way pro posed; he must go a step further and show that B has done something itself wrongful or wrongful by reason of other facts. Such appears to be the result, if the case is to rest on logic. But there are, as we have seen, plain limitations to logic; rules of law are not necessarily rules of reasoning. The dominant power of a given time may break up and give place to another or to an unsettled state of things; and this requires, or may require, a new beginning in the course of the law. The old order is a spent force, and reasoning from it falls to the ground. The present may be a case of the kind; it may be that a new dominating force requires the rule in question; if so, there is an end of the matter. And that appears to be the view finally taken in Massachusetts of cases of combinations having a malicious
("malevolent") purpose; capital as the new social force, displacing equality as the social force of the "classical " period of the common law.1 That position can well be accepted as sound.2 In many cases it is plain upon ordinary common law reasoning that to inflict harm intentionally is to create liability in tort. . It is now plain too on what footing such cases stand, as cases of logic; they are cases which do not fall within the protection of any general rule of law — they are cases in which protection is to be found, if at all, in justification as already explained. The de fense rests on a particular ground of legal right — permissive or full, it matters not — which brings the subject within some special rule of law applicable to cases of the kind. A applies to B, a druggist, for dandelion, a harmless preparation, and B, or a stranger in the shop, intending to harm A slightly, by way of a practical joke, makes a present to him of a bottle containing more or less of belladona, a somewhat dangerous prepara tion, as dandelion, which A uses to his hurt;3 B puts up a chandelier unsafely, with intent that it shall fall upon and harm A,4 which it does; in such cases (and in many others, such as license or other permission "of the 1 Berry v. Donovan, 188 Mass. 353, 359; Knowlton, C. J., for the court saying that if combinations of labor for a malicious purpose were to be held lawful, "employers would be forced to yield to all their demands, or give up business." See Cen tralization and the Law, 9-12. In Berry v. Donovan combination was held not to constitute competition. 2 Whether the new energy is to be preferred to the old is another question, with which we are not here concerned. The conception of the dominating power may, of course, invalidate the whole elaborate structure of common law reasoning over malice in relation to legal right.
- Compare Thomas v. Winchester, 6 N. Y. 397,
where the drug was sold; but that was treated as immaterial. 4 See Collis v. Selden, L. R. 3 C. P. 493; George v. Skivington, L. R. 5 Ex. i; Langridge v. Levy, 2 M. & W. 519:8. C. 4M.&W. 338.
