WAR FINANCES IN THE NETHERLANDS UP TO 1918. M. J. Van Der Flier, LL. D. Economical and Social History of the World War. Carnegie Endowment for Permanent Peace. Oxford University Press, New York, 1923, pp. xi, 150.

University of Pennsylvania

Law Review

And American Law Register

FOUNDED 1852

Published Quarterly, November to June, by the University of Pennsylvania Law School, at 34th and Chestnut Streets, Philadelphia, Pa.

VOL. 72.

MAY, 1924.

LEGAL CAUSE.*

No. 4.

II.

THE "SUBSTANTIAL FACTOR" TEST.

Professor Smith proposed, as "a general rule which, although confessedly imperfect, is nevertheless better than any of the tests hitherto in common use," that "defendant's tort must have been a substantial factor in producing the damage complained of." 121 He claimed no great definiteness for this rule; and he recognized that there is much conflict in the authorities, and that his rule would impose liability in many cases in which they have usually refused to impose it.

Professor Smith's test allows room for the operation of most of the considerations which seem to influence the courts in deciding questions of legal cause; but I believe that several of these considerations may be differentiated, and that, as applied to many situations, his test misses not only the authorities but an average sense of justice. I believe it to be erroneous, from both points of view, to suggest that nothing affects

*The first installment of this article appeared in the issue of March, 1924, of the UNIVERSITY OF PENNSYLVANIA LAW REVIEW at page 211. (72 U. OF PA. L. REV. 211.)

X

legal cause except the degree in which an act is a substantial factor in producing a result. Professor Smith recognized, as an exception to this rule, that "Where two tort-feasors are simultaneously operating independently of each other, and the separate tortious act of each is sufficient in and of itself to produce the damaging result," each is liable, although the damage would have occurred just the same if his tort had not been committed, 122 On the other hand, suppose D wounds A, and A contracts scarlet fever from the person to whom he applies for treatment; 123 the wound, which led A to seek the treatment, would seem to be a very substantial factor in subjecting him to the disease, but the wound has been held not a legal cause of the disease, and this result seems just. Again, D leaves a pit dangerously exposed, and X intentionally thrusts A into it; D's act is a very substantial factor in producing the harm, but the law does not hold him responsible, and this decision also probably agrees with an average sense of justice. 124

JUSTICE AS THE TEST.

The question, what is the law of causation for, is fundamental. D has done an act; his doing it is legally culpable, and culpable toward P; and harm of a sort which the law recognizes has in fact been caused to P by the act, in the sense that harm has occurred which, but for the act, would not have occurred. Why should not D be liable for the whole harm? Very commonly he is not; very often the law refuses to recognize him as the cause, for legal purposes, of the whole harm. As the law of evidence excludes from consideration much that is evidential, the law of causation excludes much that is consequential. Is this simply arbitrary, or is there some good reason for it, and if so, what reason?

194

Bush v. Com., 78 Ky. 268 (1880).

Alexander v. Town of New Castle, 115 Ind. 51, 17 N. E. 200 (1888); Milostan v. Chicago, 148 Ill. App. 540 (1909).

According to Professor Beale, the purpose of the doctrines of legal cause is speed; 125 according to Judge Cooley, certainty.126 Doubtless the requirements of speed and certainty have some tendency in some cases to cut off some consequences from legal view; but it is submitted that this is a small part of the story. The reason underlying the run of doctrines and decisions on legal cause I believe to be simply a desire to reach a result which is in some sense just. Courts refuse to recognize all actually-caused consequences as legally caused, not chiefly because of doubt as to what is actually caused nor because there are only twenty-four hours in the day, but because it would seem unfair in many cases, and monstrous in some, to hold people responsible for all consequences which actually result from their wrongful acts. D sells dynamite to a small boy; the boy's parents take it away from him, but later give it back to him, and he explodes it and is hurt. It is clear by a preponderance of the evidence, it is even clear beyond a reasonable doubt, that the boy would not have been hurt if D had not sold him the dynamite; therefore, Cooley's reason for relieving defendants of liability does not apply. And the facts are simple and quickly proved; therefore Professor Beale's reason does not apply. Yet

125 66

all agree, that the limitation of legal investigation to proximate cause or consequence is due to the impossibility of the court making a complete investigation and thus doing complete justice. The consequences of an act may be innumerable; to trace them would require infinite time and patience. Here, as in all affairs of life, it is necessary to reach a result which will secure to each interest the greatest amount of consideration which is compatible with an equal consideration to all other interests. To apply this principle to the question under discussion, the court can give to the tracing of the consequences of any particular act only its fair share of all the available time, considering the other acts which are waiting its attention." (33 HARV. L. REV. 636, 640.) The implication clearly is that a court would do more "complete justice" between the parties to a given cause if it recognized all actual causation as legal; and that, in refusing to do so, courts not only are not seeking, but are even measurably sacrificing, justice between the parties, in order to save time and attend to other parties.

126

"To the proximate cause we may usually trace consequences with some degree of assurance; but beyond that we enter a field of conjecture, where the uncertainty renders the attempt at exact conclusions futile." (Cooley, Torts, [3 ed.], Vol. 1, p. 99. Professor Bingham quotes and criticizes this statement; 9 COL. L. REV. 36.) As applied to most cases, doctrines of legal cause, so far from reducing uncertainty, greatly increase it. Whether a given event is in fact a consequence of another, in the sense that it would

D is not liable, because not a legal cause.127 The intervention, after the danger which the defendant created appeared to be over, of the boy's parents, makes it seem unjust to hold D.

The fact that the rules of legal cause are intended to produce a just result, rather than to save time or avoid uncertainty, is emphasized by the attitude of the law toward what may be called alternative causes; i. e., causes each of which, without the concurrence of the other, would have been sufficient to produce the result. In general, "a defendant's tort cannot be considered a legal cause of plaintiff's damage, if that damage would have occurred just the same even though the defendant's tort had not been committed." 128 But, by exception, "where two tort-feasors are simultaneously operating independently of each other, and the separate tortious act of each is sufficient in and of itself to produce the damaging result," each is liable. 129 XIt would be shocking to our sense of justice to relieve two wrongdoers of liability on the ground that both are responsible. So, if D's wrongful act and the innocent act of another, or D's wrongful act and a natural force, were, each alone, sufficient to produce the damage, D's act is not a legal cause of the damage; but if D's wrongful act and the wrongful act of another were, each alone, sufficient to produce the damage, D's act (and also the other) is a legal cause.180 Yet D's act stands in the same logical relation to the result, whether the other actor is a wrongdoer, an innocent person, or a thunderstorm. The likelihood of the result may be the same; its directness or indirectness is the

not have occurred but for the other, is a relatively simple question; so simple, in fact, that there is seldom any dispute over it. On the other hand, whether one event is a legal consequence of another is often a question of much doubt and difficulty. The very problem of legal cause is the problem when to disregard consequences which demonstrably were caused, in a logical sense, by given acts.

137 Carter v. Towne, 103 Mass. 507 (1870); Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 113 S. W. 647 (1908); Professor Beale in 33 HARV. L. REV. 656.

128 Professor Smith, 25 HARV. L. REV. 312.

120 Ibid.

130 Cook v. Minn. R. Co., 98 Wis. 624, 74 N. W. 561 (1898); Miller v. Northern Pacific Ry. Co., 24 Idaho 567, 135 Pac. 845 (1913).