ÆäÀÌÁö À̹ÌÁö
PDF
ePub

negligence if he does not make examination for himself. But there are some obvious precautions that every one ought to take, as for instance, one ought to read an instrument before signing it, and failure to do so would be such negligence as would bar a recovery for fraud unless the person is for any reason unable to read or prevented by a clear trick from reading. And it is held that if the opportunity for verification is immediately at hand, it is one's duty to make examination rather than rely on a state

ment.

§ 381. Damage. It is an essential of the cause of action for a fraud that there shall have been some damage done by acting on the misrepresentation. It is not sufficient that damage may occur in the future, it must have occurred.

§ 382. The remedies.-The law will redress a fraud, either by way of action, or by way of defense. The injured person may recover damages for his injury, he may recover back what he has been defrauded of, or he may have injunction against the wrong-doer's bringing an action, or against his disposing of the property fraudulently obtained. If an action has been brought by the wrong-doer upon the fraudulent transaction, the injured person may plead the fraud as a defense. In many cases of fraud, the law remedies the wrong by way of estoppel, that is to say, it compels the wrong-doer to abide by his false statement, and will not permit him to show it to be false.

§ 383. Personal injuries through fraud.-As has been shown under the head of assault and battery, it is usually a good defense to show that plaintiff consented to the act; but if the consent was obtained by

fraud, the defense is overcome.

The fraud in such

case is the essential thing giving a right of action. If one person knowingly hands another an explosive, and the latter, being ignorant, is without fault injured, the former is guilty of a gross fraud; the action, however, would be for an assault and battery, or for negligence. And so, where one leaves exposed anything that is dangerous, whether on his own premises or elsewhere, in such a manner as to create an appearance of safety, and in consequence injury occurs to innocent persons, it is clear that the most important element of wrong is the deception; yet the action would properly be considered as one for negligence or for nuisance. Where fraud produces personal injury, there is generally some other ground than fraud upon which the case may rest. It is conceivable, however, that there might be a case in which a malevolent person could by fraud alone cause direct personal injury, and which would be redressed upon the ground of fraud and deception. The usual field for fraud is that of property and contracts.

CHAPTER XXX.

NUISANCE.

§ 384. How related to negligence.-Nuisance may be described as some use of one's property or rights that is carried beyond the limits which a just regard to the welfare of others prescribes.

Negligence may be described as the failure to use ordinary care in the performance of some duty enjoined by law, whereby injury results.

Although the wrongs of nuisance and of negligence are in their nature essentially different and require a separate consideration, yet they have certain points of similarity and of difference which it will be instructive to bring into comparison.

They are alike in that they may affect either the person or property. They are further alike in that the wrong-doer does not primarily seek to destroy or take away the rights or property of the injured one, but the injury consists usually in only an impairment of the rights or property. The injury done is indirect, that is to say, the injury done is either not immediately at the hands of the wrong-doer, or not within his purposes, but generally occurs as the secondary effect of some wrongful act. It is not essential in either that there shall have been any evil motive; indeed, the legal wrong of nuisance, or of negligence,

may exist, although the actual intent was praiseworthy.

Among the points in which they differ, nuisance generally implies some duration of wrong-doing; negligence is usually from single acts or omissions. In nuisance the injury done may have been intentional or unintentional; in negligence it is essential that the precise injury shall have been unintended. In nuisance the question is as to the lawfulness of the act itself, in other words whether there is any right to do the act at all; in negligence the right to do the act is not generally in dispute, but the inquiry is as to the manner of doing it.

The line of demarkation between the principles that control the two classes of wrong is clear, yet the wrongs may co-exist under the same state of facts, and it frequently happens that one is involved as an essential element of the other. For example, a properly constructed railroad crossing in a street is not a nuisance, but if, through negligence in keeping it in repair, it becomes an obstruction, it will be a nuisance.

§ 385. Nuisance defined.-The word means "annoyance." A common definition is, "anything which worketh hurt, inconvenience or damage to another." Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of life or property, is a nuisance. The definitions are unavoidably too comprehensive. Many wrongs that seem to be included within the bounds of the definition of nuisance are clearly within other classes that have been hereto

fore considered. An assault and battery is injurious to health and offensive to the senses; a trespass interferes with the comfortable enjoyment of property; a libel worketh hurt, inconvenience and damage, but these are not nuisances. Only such wrongs falling within the definition as do not fall under other distinct heads are to be treated as nuisances.

A thing may be a nuisance (1) causing personal discomfort, as by interfering with one's quiet, or personal freedom, or affecting in an injurious way the senses, nerves or health; (2) causing material injury to property, as by loss of trade, deterioration of values, complete or partial destruction of property. In determining whether or not a given thing is a nuisance, there will be found to be some difference, when viewed as to its effect upon the person or upon property.

Whether an act causing mere personal discomfort is or is not a nuisance, generally depends upon the question whether, under the circumstances, it is reasonable; for, it is obvious that the carrying on of daily business operations necessarily involves some discomfort to neighbors. If one resides in a manufacturing district he must be content to endure more annoyance than would be permissible in a district used for residence purposes only. The discomforts are supposed to be outweighed by the advantage of having business conducted in such place. To be unlawful, the act must be one causing or threatening some sensible physical annoyance; if only mental disquietude is involved, there will be no nuisance. The annoyance can not, however, be allowed to exceed what is reasonable; whenever it does so it will

« ÀÌÀü°è¼Ó »