CHAPTER I. DEFINITION AND HISTORY OF TORTS. SECTION 1. DEFINITION OF TORT. Although the branch of law now treated under the designation of torts is one of the earliest to appear in any legal system, the name itself has only come into general use during the past half century. It is very difficult to give any definition of tort which is both correct and concise. The reason for this lies largely in the great variety of wrongs which are included under this general title. The field of the law of torts is very broad, overlapping the field of criminal law on the one side, and that of contracts on the other. "The term 'tort,' being indefinable because of its generality, it follows that such definitions of tort as commend themselves at first glance, will, upon examination turn out to be spurious. The following proposition, for instance, is a terse and accurate statement of a certain legal truth, and at first blush it may appear to be a logical definition. A tort, we may say, is that legal wrong, or breach of duty, which is capable of being redressed in a civil action for damages. But this proposition states no criterion for distinguishing between a breach of contract and a tort, and in fact merely amounts to this, that a tort is a legal wrong for which damages may be recovered. This statement is true enough, but it is no definition."1 One of the best definitions of this term which Street's Foundation of Legal Liability, Vol. I, p. XXVII. has yet been given is that by Mr. Justice Holmes, of the United States Supreme Court: "I think that the law regards the infliction of temporal damage by a responsible person as actionable, if under the circumstances known to him the danger of his act is manifest according to common experience, or according to his own experience if it is more than common, except on cases where upon special grounds of policy the law refuses to protect the plaintiff or grants a privilege to the defendant." 2 Other definitions which have been given are as follows: "A tort is an act or omission giving rise, in virtue of the Common law jurisdiction of the Court, to a civil remedy which is not an action of contract." "A tort may be said to be a breach of duty fixed by municipal law for which a suit for damages can be maintained." 4 "The word 'torts' is used to describe that branch of the law which treats of the redress of injuries which are neither crimes nor arise from the breach of contracts. All acts or omissions of which the law takes cognizance may in general be classed under the three heads of contracts, torts and crimes. Contracts include agreements, and the injuries resulting from their breach; torts include injuries to individuals; and crimes, injuries to the public or state." 5 Adding another to this list of definitions; a tort is a violation of those general rights which are secured to the individual by the laws as against all other members of the community, as contradistinguished from those special rights, which arise out of contracts, and only exist against the other parties to said contracts. • 10 Harvard Law Review, 471. Pollock on Torts, p. 4. 4 Bigelow on Torts, p. 3. SECTION 2. TORTS AND CRIMES DISTINGUISHED. The fact that torts and criminal law were originally one branch of the law has been already stated and explained. Even today, after the differentiation of the two branches has been completely worked out, the same act often constitutes both a crime and a tort. Briefly stated the difference between a tort and a crime is that the former is a wrong to an individual and the latter a wrong to the public. The former is redressed by compelling the wrongdoer to recompense the injured party for the damages he has suffered; the latter is redressed by the punishment of the criminal.” Under the early Common law, where the same act amounted both to a tort and a felony, the tort was held to be merged in the felony, and no civil action was allowed to the injured party. This extreme rule, however, was soon abandoned, or rather modified, it still being held that the civil action was suspended during the criminal prosecution, and that the plaintiff must allege in his pleadings his diligence in the criminal prosecution, and prove such diligence at the trial." If the plaintiff alleged, an unprosecuted felony as his cause of action, the proceedings in the case were stayed until the offender could be prosecuted.10 A defendant, See Vol. I, pp. 16-18. 1 "Certain acts or omissions are made public offences by the common law or by statute, either because their inherent qualities and necessary tendencies make them prejudicial to organized society, or because it is believed that the evils likely to flow from them will be so serious that the general good will be subserved by forbidding them and penalities are attached to them, which are imposed on public grounds. These, according to their grade, are crimes or misdemeanors, or they are simply things prohibited under penalty. But where the same wrongful acts cause damage to private individuals, they come directly within the definition of torts, and are such." Cooley on Torts (2nd Ed.), 81. Higgins vs. Butcher, Yelv., 89. 10 Roope vs. D'Avigdor, 10 Q. B. however, never could set up his own felony as a defense.11 A tort was never held to be merged in a misdemeanor. In a few of the States of this country," the English rule on this point was adopted; but in the great majority of States it never was.13 In a number of the states, including some of those which at first adopted this principle, the English rule has abolished by express statute,14 Where the same act is both a tort and a crime the party injured has no right to drop the criminal prosecution, or to agree not to testify against the accused, upon satisfaction of his private injury. Such an act would constitute a compounding of a felony, and would be in itself a crime. SECTION 3. TORTS AND BREACH OF CONTRACT DISTINQUISHED. As shown in the author's definition of a tort, a right of action for tort arises where there has been a violation of a right given by law, while a right of action for breach of contract exists where there has been a violation of some right acquired by contract. These two fields, however, overlap. The same action may constitute a breach of contract and also a tort. In such cases, there is an election of remedies, and the party injured may sue either in tort or contract. The cases where this double remedy exists will be shown in the treatment of the various subdivisions of this subject. A common example of such cases are found in contracts which one party is induced to enter into by deceit. A few legal differences in the cases of action of tort (ex delictu) and of contract (ex contractu) may here be noted. Joint tort-feasors are generally severally liable and no right of contribution exists among them; 16 infants who are incapable of contracting are nevertheless generally liable for their torts; 16 at common law actions of tort will never survive the death of either party. SECTION 4. TORTS AND EQUITY. In a few cases a person injured by another has the option of suing for damages on the tort, or of going into equity to seek some special equitable relief, generally an injunction. Such cases will be more conveniently treated under the subject of Equity Jurisprudence than in this place. SECTION 5. PARTIES IN ACTIONS OF TORT. As torts are the violation of general rights created by law, it necessarily follows that any person in the community may be the party injured by such a violation of rights, and may therefore be the plaintiff in an action of tort. There are some limitations upon the liability of certain classes of persons for their torts; but such limitations are much narrower than the case of the rules governing liability on contracts. For the extent of the liability of infants and married women for their torts see the subject of Domestic Relations." Both are generally liable for their torts, with the exception that young infants cannot be held liable for torts in which malice is an element. A lunatic is also liable for his torts except those involving malice.18 This liability is held to extend 15 In a few cases there can be con tribution between joint tort feasors. See contribution under subject of Equity Jurisprudence. 16 See subject of Domestic Rela 17 Volume IV, Subject 10. 18 Behrens vs. McKenzie, 23 Iowa, 333; Jewell vs. Colby, 66 N. H., 399; Ward vs. Conatser, 4 Baxt., 66; Morse vs. Crawford, 17 Vt., 499, 44 Am. Dec., 349. |