Kansas City journal. [volume] (Kansas City, Mo.) 1897-1928, 1898-08-18
AMERICAN BAR ASSOCIATION IN sEs-
SION AT SARATOGA.
LARGE NUMBER IN ATTENDANCE
PAPER READ by L. c. kRAUTHOFF,
OF KANSAS CITY.
His Subject Was "MaIice as nm Ingre-
dient of a Civil Cause of Action.
Judge Brewster, of Com
necticut. on "Uni-
form Laws


sion here to-day. There was large at
tendance of distinguished members of the
bar from all parts of the country. The
president. William Writ Howe, of Louisi-
ana, made the annual address.
The address of welcome was made by
Chief Justice Alton E. Parker of the court
of appeals.
The association this afternoon nominated
and elected members. The report of the
general council was submitted. The reports
of the secretary, John Hinkley. of Balti-
more, and the treasurer, Francis Rawle. of
Philadelphia, were presented and referred.
as also was that of the executive commit
tee. of which President Howe. of New Or
leans, is chairman. Judge Lyman D. Brew
ster, of Connecticut, tonight read a very
able paper on Uniform State Laws"
paper was read by L. c. Krauthoff. of
Kansas City. on Malice as an Ingredient
of Civil Cause of Action" Mr.. kraut-
hof's paper was, in part. as follows:
That branch of the law which is comprehensively
classed the law Of is of the utmost impor-
tance 1t has been developed slowly and in many of
It's phases Is involved in confusion and obscurity.
This is largely attributable to failure TO bear in
mind that many acts are wrongful without being
criminal and equally SO to non-observance OF the
fact that the underlying theory Of the Roman jurs-
prudence is in this respect widely different from that
upon which common-law rules have been built up.
In system. rights and obligations independent of
contract depend largely upon legal principle Much
OF the obscurity has been removed. but the puzzng
and confusing term. malice" has stood an i'm
portan barrier to complete in the effort to de-
veop this branch of the law as logical and consist
ent science of legal propositions.
That word appears to have been first introduced into
the law governing civil actions by of the habit
many ruperative expletives designed characterize
human conduct whether it be the non-payment Of a
a duty imposed BY law. It has always been recog.
nized. however. that its legal meaning was widely
different from the popular acceptation OF the term
As used in the law specifies the intentional doing
of wrongful without lawful cause excuse.
and has reference to motives Of il-wili malevo-
lence the like Its legal meaning was an adapta-
tion Of the criminal law definition Of the expression
especially used in indictments for murder In
making the transfer important change in meaning
unconsciousy wrought ta) by an inaccuracy o.
verbiage and (b) by failing to note that the aln-
portant element OF intention In the criminal law had
place in the ordinary civil action. In suca
tion. except to that Inheritance from the days
when the civil remedy was confined TO acts which
were also criminal and which is known as vindictive
exemplary damages. the only intent which has
relevancy is that purpose to cause all the damages
naturally flowing from the act done Is conducive!y
presumed.
BY long line OF decisions OF the highest authori
lished proposition that an act which party had a
right to do was none the less lawful because done
from reprehensible motive 1t was no more per
missible to charge party with the consequences Of
lawful oct upon proof OF such motive than it was
for defendant responsibility for the results
Of his unlawful act by showing of the best OF pur
poses. Accurately applied this conclusion made the
word malice" in whatever sense used. wholly
meaningless and unnecessary the law OF Torts. Its
CONTINUED nse theretore naturally resulted in intro
ducing element of uncertainty into branch oil
the law whose rules should be fixed and stable
Rights which uncertain or wayering are largely
visionary.
In actions In which the word is generally used. such
as those brought for libel slander whether OF the
person of property. malicious prosecution. ent;ce-
ment Of servants and the like the controlling ele-
ments widely different from any accurate con.
ception of the proper legal meaning of malice -
OWN In a formulated ESher,
until recently master OF the rolls, the term bade
fair to be lifted into position Of universal impor
tance. 1t suggested by Lord Esher that malice
in the OF indirect motive. namely. purpose
to harm another or to benefit ones self at the ex-
pense of someone else. would have the effect to
transform lawful act into a wrongful one. That
suggestion achieved prominence by the action Of a
number Of judges. principally in the United States.
In applying the test thus outlined to the contro-
versies which have arisen in the commercial and In
dustria worlds during the past decade. Thus. it was
laid down that although employees were not under a
time contract but free to leave sngly or in con
cert. the employer was to dispense with their
services at WILL vet IL they left, announced a
purpose to do because OF such indirect motive
they liable to action for damages to be
enjoined from leaving. In other words they were
bound to remain in service unless their motive in
leaving which commended itself to the re-
viewing Judge.
To a large extent this doctrine was overturned in
this country by Mr.. Justice Harlans opinion in Ar
thur Oakes. 63 Fed. Req. $40, decided in 1891
The question in Its fundamental bearings and Incl
sion malice" presented to the English house
of lords in the now we'll known of Allen VS.
Flood. finally decided on December "A. 1851. the
opinions in which cover the first ISL pages Of Appeal
Cases for 1s9s The facts OF that briefly stated
were that Allen. as the representative Of powerful
labor union Of ironworkers, notified employer Of
a large number of its members that unless Flood. a
member Of q union OF shipwrights. who had worked
shortly before and always at opportunity, in man
contrary to the rules and policy of Aliens union
forthwith discharged the would knock
on work. As such strike would have compelled the
works to suspend operations Aliens demand was
yielded to. Flood thereupon sued Allen for having
maliciously'' procured his discharge The wa.
twice argued in the house Of lords. At the last
hearing. eight additional judges were summoned.
procedure which had not previously been resorted
since 1851. The universally regarded OF
the supremest Importance 1t received the most pains
taking and exhaustive consideration; it heard
and decided with the utmost solemnity: and the con-
clusion announced has been warmly approved In both
legal and lay circles. A majority Of the house OF
lords in holding that Flood could not recover, ex-
ploded and overruled Lord Esher's formula.
II Is universal rule OF the common law that con.
duct lawful in itself is not converted by malicious
1. e., bad or indirect. motive into unlawful OF
tortious act.