The Common Law [107]
he had undertaken to cure.
[277] Both these cases, it will be seen, were dealt with by the court as pure actions of tort, notwithstanding the allegation of an undertaking on the part of the defendant. But it will also be seen that they are successively more remote from an ordinary case of trespass. In the case last stated, especially, the destroying force did not proceed from the defendant in any sense. And thus we are confronted with the question, What possible analogy could have been found between a wrongful act producing harm, and a failure to act at all?
I attempt to answer it, let me illustrate a little further by examples of somewhat later date. Suppose a man undertook to work upon another's house, and by his unskilfulness spoiled his employer's timbers; it would be like a trespass, although not one, and the employer would sue in trespass on the case. This was stated as clear law by one of the judges in the reign of Henry IV. /1/ But suppose that, instead of directly spoiling the materials, the carpenter had simply left a hole in the roof through which the rain had come in and done the damage. The analogy to the previous case is marked, but we are a step farther away from trespass, because the force does not come from the defendant. Yet in this instance also the judges thought that trespass on the case would lie. /2/ In the time of Henry IV. the action could not have been maintained for a simple refusal to build according to agreement; but it was suggested by the court, that, if the writ had mentioned "that the thing had been commenced and then by not done, it would have been otherwise." /3/
[278] I now recur to the question, What likeness could there have been between an omission and a trespass sufficient to warrant a writ of trespass on the case? In order to find an answer it is essential to notice that in all the earlier cases the omission occurred in the course of dealing with the plaintiff's person or property, and occasioned damage to the one or the other. In view of this fact, Thorpe's reference to indictments for killing a patient by want of care, and the later distinction between neglect before and after the task is commenced, are most pregnant. The former becomes still more suggestive when it is remembered that this is the first argument or analogy to be found upon the subject.
The meaning of that analogy is plain. Although a man has a perfect right to stand by and see his neighbor's property destroyed, or, for the matter of that, to watch his neighbor perish for want of his help, yet if he once intermeddles he has no longer the same freedom. He cannot withdraw at will. To give a more specific example, if a surgeon from benevolence cuts the umbilical cord of a newly-born child, he cannot stop there and watch the patient bleed to death. It would be murder wilfully to allow death to come to pass in that way, as much as if the intention had been entertained at the time of cutting the cord. It would not matter whether the wickedness began with the act, or with the subsequent omission.
The same reasoning applies to civil liability. A carpenter need not go to work upon another man's house at all, but if he accepts the other's confidence and intermeddles, he cannot stop at will and leave the roof open to the weather. So in the case of the farrier, when he had taken charge of the horse, he could not stop at the critical moment [279] and leave the consequences to fortune. So, still more clearly, when the ferryman undertook to carry a horse across the Humber, although the water drowned the horse, his remote acts of overloading his boat and pushing it into the stream in that condition occasioned the loss, and he was answerable for it.
In the foregoing cases the duty was independent of contract, or at least was so regarded by the judges who decided them, and stood on the general rules applied to human conduct even by the criminal law. The immediate occasion of the damage complained of may have been a mere omission letting in the operation of natural forces. But if you connect it, as it was connected
[277] Both these cases, it will be seen, were dealt with by the court as pure actions of tort, notwithstanding the allegation of an undertaking on the part of the defendant. But it will also be seen that they are successively more remote from an ordinary case of trespass. In the case last stated, especially, the destroying force did not proceed from the defendant in any sense. And thus we are confronted with the question, What possible analogy could have been found between a wrongful act producing harm, and a failure to act at all?
I attempt to answer it, let me illustrate a little further by examples of somewhat later date. Suppose a man undertook to work upon another's house, and by his unskilfulness spoiled his employer's timbers; it would be like a trespass, although not one, and the employer would sue in trespass on the case. This was stated as clear law by one of the judges in the reign of Henry IV. /1/ But suppose that, instead of directly spoiling the materials, the carpenter had simply left a hole in the roof through which the rain had come in and done the damage. The analogy to the previous case is marked, but we are a step farther away from trespass, because the force does not come from the defendant. Yet in this instance also the judges thought that trespass on the case would lie. /2/ In the time of Henry IV. the action could not have been maintained for a simple refusal to build according to agreement; but it was suggested by the court, that, if the writ had mentioned "that the thing had been commenced and then by not done, it would have been otherwise." /3/
[278] I now recur to the question, What likeness could there have been between an omission and a trespass sufficient to warrant a writ of trespass on the case? In order to find an answer it is essential to notice that in all the earlier cases the omission occurred in the course of dealing with the plaintiff's person or property, and occasioned damage to the one or the other. In view of this fact, Thorpe's reference to indictments for killing a patient by want of care, and the later distinction between neglect before and after the task is commenced, are most pregnant. The former becomes still more suggestive when it is remembered that this is the first argument or analogy to be found upon the subject.
The meaning of that analogy is plain. Although a man has a perfect right to stand by and see his neighbor's property destroyed, or, for the matter of that, to watch his neighbor perish for want of his help, yet if he once intermeddles he has no longer the same freedom. He cannot withdraw at will. To give a more specific example, if a surgeon from benevolence cuts the umbilical cord of a newly-born child, he cannot stop there and watch the patient bleed to death. It would be murder wilfully to allow death to come to pass in that way, as much as if the intention had been entertained at the time of cutting the cord. It would not matter whether the wickedness began with the act, or with the subsequent omission.
The same reasoning applies to civil liability. A carpenter need not go to work upon another man's house at all, but if he accepts the other's confidence and intermeddles, he cannot stop at will and leave the roof open to the weather. So in the case of the farrier, when he had taken charge of the horse, he could not stop at the critical moment [279] and leave the consequences to fortune. So, still more clearly, when the ferryman undertook to carry a horse across the Humber, although the water drowned the horse, his remote acts of overloading his boat and pushing it into the stream in that condition occasioned the loss, and he was answerable for it.
In the foregoing cases the duty was independent of contract, or at least was so regarded by the judges who decided them, and stood on the general rules applied to human conduct even by the criminal law. The immediate occasion of the damage complained of may have been a mere omission letting in the operation of natural forces. But if you connect it, as it was connected