Noel, Dix W.

English

Yale Law School Legal Scholarship Repository

THE YALE LAW JOURNAL
COGITATIONS ON TORTS. By Warren A. Seavey. Lincoln: The University of
Nebraska Press, 1954. Pp. 72. $2.00.
As the thousands of students who have attended his classes at Harvard Law
School well know, Professor Seavey is more inclined to listen and to provoke
others to thought than to express himself, except by animated reactions to what
has been confidently proposed. When he does have something to say, his ob-
servations are the result of no little insight and reflection, and it is fortunate
that his high regard for Dean Pound induced him to deliver the third set of
lectures in the Roscoe Pound Lectureship Series which make up this little book.
Professor Seavey considers that on the whole the law of torts has fulfilled
effectively its-function of continuously marking out new areas of protection in
the range of human concerns. While in some areas he finds definite need for
change and development, he feels that the courts "have done a magnificent job
in working out the pattern needed for justice."' And Professor Seavey believes
the judges rather than the legislature should make the needed changes, even
those as extensive as the adoption of comparative negligence rules, or major
revisions of the defamation law. The courts "have power to change their judge-
made rules"; there is no necessity to wait for a statute, with its undesirable
"attention to minutia." 2 In the field of negligent misrepresentation, for example,
several courts have shown themselves able to advance with discretion, making
due distinctions between purchases by ignorant people and those by intelligent
businessmen whose experience leads them to discount sellers' statements and
rely on their own investigations.3 Without waiting for legislation, judges can
continue to develop rules along the lines of the Securities and Exchange Act,
and thereby keep abreast of the current practices of reputable merchants, rather
than consider themselves bound by the habits of horse traders. 4
Professor Seavey points out that there is much less need to adhere to the
doctrine of stare decisis in the field of torts than in the realm of property and
commercial law. No unfair upsetting of prior arrangements would be involved,
for example, if in connection with affirmative duties to aid the helpless a court
should "impose liability for the first time upon the Pharisees and the scribes
who passed on the other side," in situations where aid could have been given
without serious inconvenience. 5 Likewise, without undue hardship, changes
could be made in the unreasonable rule denying contribution, or the one that
payment by one person to compromise a contingent obligation does not reduce
the damages owing from another party found to be negligent. Professor Seavey
also hopes that the judges will make it unnecessary for him to continue to shock
his students, as he has for years, by telling them that "if by mistake one were
1. Pp. 5, 70.
2. P. 57.
3. P. 42.
4. Pp. 61-8.
5. P. 68.
[Vol. 64
REVIEWS
to take another man's hat, believing it to be his own, and were intercepted on
the spot, an apology and tender of the hat would not relieve him of a duty to
pay its value."
6
There are several matters in the book of special interest to teachers and stu-
dents. Those looking for a brief but convincing explanation of the risk theory
of liability, designed to replace "proximate causation" concepts and language,
will find here just such an explanation by the leading modern proponent of the
risk doctrine.7 MXIany helpful observations are made in connection with the lead-
ing defamation cases. For example, Professor Seavey approves of the con-
ditional privilege of Coleman v. MacLennan 8 to make misstatements about
public officers and candidates, but not on the usual ground that this privilege
will improve the quality of public officials. That is a matter which Professor
Seavey does not believe can be ascertained. Nevertheless, he feels that "electors
should be free to state what they reasonably believe" and that it "is far better
to have the statements made openly where they can be met and, if not true, dis-
proved, than to drive them into despicable whispering campaigns or publication
in pamphlets by unknown authors."9 With reference to the distinction between
libel and slander, Professor Seavey suggests that whenever a statement is made
in a public speech, whether or not broadcast by radio, it should be classified
under the more strict rules of libel. On the other hand, he feels that it is unfair
to impose strict liability on radio speakers and newspapers for words of un-
known defamatory connotation, as was done in Cassidy v. Daily Mirror News-
papers, Ltd.,10 "as if words were in the category of known explosives or
poison."'' In connection with strict liability generally, Mr. Seavey refers to
its present "very limited" area, and believes that this is one field where stare
decisis should protect a defendant who may not have protected himself by lia-
bility insurance. 2 There is no discussion, either pro or con, of the possibility of
extension of strict liability to less hazardous activities under share-the-risk
doctrines or the like.
This reviewer was particularly interested in what Professor Seavey has to say
about the teaching of law. It is significant that, while he has no inclination to
disparage the function of a teacher and scholar, he has allotted a minimum of
his own working time to the writings of scholars, preferring to devote himself
to reading and digesting judicial opinions. He remarks, in connection with our
tendency to criticize judges, that we are likely to become prisoners of our own
specialization, so that "[a]t best our criticisms are colored by our academic
6. P. 52.
7. See pp. 33-6.
8. 78Kan. 711,98Pac. 281 (1908).
9. P. 59.
10. [1929] 2 K-B. 331.
11. P. 58.
12. Pp. 43,67.
19541
THE YALE LAW JOURNAL
life," and "[a]t worst they are unreal." s Perhaps Professor Seavey's own tin-
usual freedom from academic narrowness and unreality is due in part to his
willingness to devote so much time to the opinions of judges. An even more
important factor in this connection, however, would seem to be a willingness
to learn from his students. In what is perhaps the most characteristic passage in
the book this preEminent teacher says of students: "They give us far more
than they receive."'1 4 He points out how discussion with students continuous-
ly gives us new points of view, which benefit not only us, but also the law, so
far as we may affect it through teaching and writing. As specialists, we tend
to exclude considerations beyond our specialty, and as individuals we are apt
to be unduly affected by early indoctrination in outmoded economic and social
theories. Discussion with young but educated law students obliges us to look
at additional factors, and to consider the various trends of modern thought
presented by eager ihinds representing all segments of the community.
Professor Seavey considers that his own principal work has been as a law
teacher, although it is evident that his work on Restatements of the Law and
his widely read law review articles often have aided judges and practitioners
as well as students and other teachers. It is to be hoped that judges will be
encouraged by this book to effect the changes in the law of torts to which
Professor Seavey lends the weight of his support. The fact that many appellate
court judges, as well as many of those who practice before them, are his for-
mer students should help to implement his suggested reforms. Furthermore,
judges generally will be attracted by Professor Seavey's approach, for he fully
recognizes their difficulties. They are faced with a great variety of problems,
being called on one day "to untangle a snarl in a corporate reorganization re-
quiring intimate knowledge of many diverse matters of fact," and the next "to
determine an intricate tax matter which may depend upon a succession of more
or less conflicting federal and state statutes."'5 In addition to the difficulty of
having no opportunity to specialize, judges are faced with the necessity of com-
ing to a prompt decision. A judge cannot wait, like a scholar, until a happy
solution strikes him. While it may be, as Professor Seavey fears, that "to our
students we must appear to arrogate to ourselves an intellectual superiority
over the judiciary,"' 0 surely no one would feel after reading this book that
Professor Seavey himself is a captious or intolerant critic.
No one interested in the field of torts, regardless of how selective he may be
in his reading, can afford to overlook this little volume. These cogitations are
of value to judges, teachers, practitioners, and students alike, and will continue
to be so for many years to come.
Dix W. NoErLt
13. P. 50.
14. P. 48.
15. P. 49.
16. P. 48.
'Professor of Law, University of Tennessee.
(Vol.,6


Seavey: Cogitations on Torts

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Seavey: Cogitations on Torts

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