THE LAW OF TORTS.

CHAPTER I.

THE GENERAL NATURE OF LEGAL WRONGS.

The purpose in the establishment of judicial tribunals is to prevent the commission of wrongs; to compel redress to those who have suffered from them, and to inflict punishment in proper cases on those guilty of their commission. In order that this may be effected the power of the State is placed at the command of the judges, and a trained body of men is always at hand to assist by their advice, and to guard by the results of their labor and investigations against any departure from correct principles. In a political society where intelligence is steadily increasing, and where public and private morality are commonly believed to gain in strength and vigor in corresponding ratio, it might be supposed that the occasions for judicial interference in the affairs of the citizen would continually grow less and less numerous, in proportion as the people acquire the capacity to understand their rights and duties, and the disposition to respect the rights of others. The contrary, however, is most indubitably the fact. The increase in intelligence, and especially the new inventions. and improvements which follow it, have a powerful tendency in the direction of creating new wants and desires, and of establishing people in new occupations, and as these increase, the interests, desires and passions of men must necessarily breed more frequent controversies. Moreover, every recognition by the law of a new right, is likely to raise questions of its adjustment to, and its harmony with, existing rights previously enjoyed

by others; and in consequence thereof people in the honest assertion of their supposed rights are brought in conflict, and one or the other is found to be chargeable with legal wrong, though no purpose has existed to do otherwise than strictly to obey the law. The effect upon the business of judicial tribunals is very marked and striking.

In a primitive state of society, while occupations are few and the transactions of business and trade are simple, the judge is seldom called upon to give redress, except for lawless and reckless conduct, where only the facts are in dispute. In the more advanced society his attention is invited to invasions of copyrights and patents, to frauds accomplished by new and peculiar methods, to questions in the law of common carriers, which are intimately connected with the new improvements in methods of transportation, and to a variety of wrongs that are new, because the conditions from which they spring, or which give occasion for them, are new. Intellectual and material progress in various ways begets a complexity of business and social relations, and this adds perpetually to the difficulties of legal administration, and multiplies with no little rapidity the occasions for an adjudication upon disputed or doubtful rights. And it renders necessary an infinity of legislation in order to adjust and harmonize the new conditions with what remains of the old.

Classification of Wrongs. It is customary in the law to arrange the wrongs for which individuals may demand legal redress into two classes: the first embracing those which consist in a mere breach of contract, and the second those which arise independent of contract. The classification is not very accurate. Many cases exist where the complaining party may, on the same state of facts, at his option, count upon a breach of contract as his grievance, or complain of a wrong in a manner that puts the contract out of view. Imperfect as it is, however, the classification has been found sufficient for judicial purposes; and where forms of action have been abolished by statute the old distinctions are still kept in view in giving redress. And while thus the common law classified wrongs, it appropriated the generic term to one class of wrongs only. Breaches of contract were mere failures to perform agre ments, and the actions for redress in the courts of law were actions on contracts, or actions ex contractu. sions giving rise to a suit at law were called

Other acts or omis specifically wrongs

or turts, and the actions by which redress was to be obtained were called actions for torts or actions ex delicto.'

It is of the cases designated torts that we propose to treat. Where wrongs are mentioned it will be understood that breaches of contract are excluded, except as otherwise indicated.

An act or omission may be wrong in morals, or it may be wrong in law. It is scarcely necessary to say that the two things are not interchangeable. No government has undertaken to give redress whenever an act was found to be wrong, judged by the standard of strict morality; nor is it likely that any government ever will. Of the reasons that would preclude such an attempt, or render it futile if made, it will be sufficient here to mention the following:

Any standard by which the law can undertake to compel the people to regulate their conduct must be one generally and spontaneously accepted, so that their approving judgment shall accom

The English Common Law Procedure Act of 1852 defines a tort as "a wrong independent of contract;" which is perhaps as good a definition as can be given, though even this may require explanation, since in many cases a tort only arises in consequence of the disregard of contract relations. Addison (on Torts. p. 1,) gives no definition, only quoting from BAYLEY, J., in Rex o. Pagram Commissioners, 8 B & C. 362, that to constitute a tort two things must concur, actual or legal damage to the plaintiff and a wrongful act committed by the defendant; but this is no more than saying that there must be damage as well as wrong to constitute a tort; and beyond that it might be misleading, since the want of an act - in other words, blamable neglect — is often the very thing in which a tort consists. Mr. Chitty speaks of personal actions in form ex delicto as being those "principally for the redress of wrongs unconnected with contract;" which is true enough, though, as we have said, torts, in large classes of cases, only arise in

consequence of a disregard of duty in relations which have been formed by express or implied contract. "We have been unable," says FINCH, J., "to find any accurate and perfect definition of a tort. Between actions plainly ex contractu and those as clearly ex delicto, there exists what has been termed a border land, where the lines of distinction are shadowy and obscure, and the tort and the contract so approach each other and become so nearly coincident as to make their practical separation somewhat difficult." . . . After noting cases where the same state of facts admits of an action either in tort or contract, he proceeds: "In such cases the tort is dependent upon, while at the same time independent of the contract; for if the latter imposes a legal duty upon a person, the neglect of that duty may constitute a tort founded upon a contract." Rich v. New York, etc., R. R. Co., 87 N. Y. 382. For discussion of torts growing out of contract relations, see p. 90, infra.

pany the endeavor to enforce conformity. It must not be one that a majority of the people do not habitually observe, because if the majority of the people are law breakers, it is obvious that only some extraneous power could ever enforce the law. And if a perfect standard were agreed upon, it must have judges and other administrators of the law so perfectly constituted in their mental and moral natures, and so perfectly trained and disciplined, as to be capable at all times of perceiving its application and of applying it, and so entirely in harmony with it as habitu

ally to be disposed to do so. The mere suggestion of these [4] *requirements is sufficient to make clear to the mind the

impossibility of making moral wrong the test of legal wrong. It follows that there must of necessity be a legal standard of right and wrong; one that will be generally accepted, and one that the people in general will consent, under penalties, to conform to. Nor is it possible that this standard should be established otherwise than by positive human law; for human law alone could constitute the authoritative expression of assent which would be evidence of agreement upon it. When, therefore, the law of the land undertakes to declare and protect rights, and establishes a standard of conduct for the purpose, the acts or omissions which disturb or impede the enjoyment of such rights may be treated as legal wrongs or torts, but none others can be.

But while it is true that many things wrong in morals may not be wrong in law, it is equally true that some things which constitute wrongs in law may not be wrongs in morals. This remark is made without any purpose to broach a controversy concerning the moral obligation of every citizen to obey all the laws of his country; since taking this for granted, the observation is still accurate. It has already been stated that acts or omissions may constitute wrongs in law where the purpose to disobey the law or to disregard any of its requirements has been wholly wanting. Every case in which parties have acted under an honest mistake regarding their rights may be of this character; and possibly it might be safe to say that in a majority of cases in which persons have been adjudged guilty of legal wrongs, no intent to disobey the law has existed; the wrong is one of accident, mistake, or

'If a person unlawfully injures another, he must pay the damages without regard to the intention with which

the act was done. Amick v. O'Hara, 6 Blackf. 258; Bruch v. Carter, 32 N. J., 554; Cate v. Cate, 44 N. H., 211;

negligence, or it is due to some other cause which is consistent with the absence of evil purpose.

Defining Rights. Every government must concern itself with the definition of rights and the providing of adequate security *for their enjoyment. If a government is properly and [*5] justly administered, this will be its chief business; and this in its true sense constitutes civil liberty. The term natural liberty is sometimes made use of by writers on law and on politics in a sense implying that freedom from restraint which exists before any government has imposed its limitations. But in no proper or valuable sense has any such liberty existed or been possible. If it be said that every man, considered as an individual without regard to family or political relations, has a natural liberty to do what he pleases, subject only to the laws of nature,' and, as Bentham expresses it, "to make use of everything," then, as the liberty of one would only be the same unrestricted liberty which was the right of every other, the liberty would be one of perpetual warfare and contention, as the wants, desires, or appetites came in conflict, and every man would have equal right to take, or hold what his courage, strength, or cunning could secure to

Dexter v. Cole, 6 Wis. 319; Gibbs v. Chase, 10 Mass. 128; Miller v. Baker, 1 Met. 27; Cubit v. O'Dett, 51 Mich. 347; Hazelton v. Week, 49 Wis. 661; Tobin . Deal, 60 Wis. 87. The intentional throwing, in sport,at another of a piece of mortar without intent to injure, is actionable if damage ensues to a third person. Peterson v. Haffner, 59 Ind. 130. Intention is immaterial to the inquiry whether an act is a nuisance. Bonnell v. Smith, 53 Ia. 281. On the other hand, if the act is not unlawful, the intent with which it is done, does not in general constitute a tort. Estey v. Smith, 45 Mich. 402. Post, ch, xxii. A rightful act negligently done is a tort. Howe . Young, 16 Ind. 312; Baltimore, etc., R. R. Co. v. Reaney, 42 Md. 117. So if the act, unlawful in itself, is lawful as to the defendant. Knott v. Wagner, 16 Lea,

481. Good faith does not excuse negligence. Lincoln . Buckmaster, 32 Vt. 652; Tally . Ayres, 3 Sneed, 677. So if a druggist negligently delivers a harmful drug when a harmless one is asked for. Brown v. Marshall, 47 Mich. 576; Davis v. Guar nieri, 15 N. E. Rep. 350 (Ohio). A trespass is often a mistaken assertion of a right in which the party has utmost confidence. Though a trespasser is misled by a bona fide mistake as to his title, or takes every precau tion to keep within his own lines, he is liable. Blaen Avon Coal Co. v. McCulloh, 59 Md. 403.