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1. Fact. The representation must be of a fact, not of opinion, nor a statement of the law unless made by a lawyer to one inexpert in the law. It may be made by a statement or an act. Silence will seldom have the effect of representation, although this is possible when happening in connection with other acts or statements. The representation must create a clear impression of a fact or facts. 2. Material. The fact must be material, and not incidental and unimportant. 3. Wilful. Knowledge of its falsity on the part of him who made the representation is also essential, and the law is satisfied if he made it either: (a) knowing it to be false; (b) recklessly without knowledge of its truth or falsity; (c) positively, when he only believed it without positive knowledge; (d) when it was his duty to know and the facts were within his reach. 4. Intent. As to the intent that it be acted on, in case of a transaction between the two parties involved, no specific proof, probably, is necessary. In any case motive is not an essential element; neither is it required to show an intent to injure the other party; that it will benefit himself is sufficient. 5. Acted Upon. The representation of fact must have been acted upon; however base it may have been, it can give rise to no suit unless acted upon. The party aggrieved must also have been entitled to act upon it; a rank outsider, who properly is not connected with the transaction, is not a party entitled to act. Sometimes any one of a class or community may have seen fit to act on a proposition which has general application and interest, and thus properly be entitled to a remedy by suit in tort. 6. Injury. There must have been injury. A suit is not appropriate when there has been no injury (beyond a loss of faith in human nature). For example, a suit for fraud based upon a note obtained by fraud is not applicable until the injury has come through the payment of the note; or in connection with a contract until some injury or damage has resulted under the operation of the contract. 7. Ignorance. The party injured must have acted in ignorance of its falsity. He must have been deceived by the representations. If he had equal information as to the facts, or if he acted on the strength of other knowledge, he has no case. If there was no warranty (in the case of a sale) and the buyer had ample opportunity to discover the facts and did not, he has no case. Equal Opportunity. With equal opportunity at hand for both parties, a lack of prudence on his own part prevents a man's maintaining his suit. When a man himself reads a contract, he is not in law deceived by it; when it was knowingly misread to him, he may be able to sustain a suit for fraud.
Engineer's Duty. Under paragraph 3 (d) the court would be likely to decide that when an engineer sets forth facts in a plan or specifications by which a contractor or other party interested is deceived, the case is one of constructive fraud, although the engineer had no actual intent to deceive; there was a duty upon him which he failed to observe to the contractor's injury; the railroad, the city, or his client is responsible for his tortious, his fraudulent act. A contract or specification, therefore, sometimes provides that the information shown on a plan shows the facts correctly so far as known, but that their accuracy is not guaranteed.
Torts in Contracts. In general it is said that a tort grows out of duties not created by contract, but it is nevertheless true that fraud is very often connected in some way with contract, and negligence often occurs in carrying out contracts.
It appears not to be important, in the case of a contract (be it a contract of sale or otherwise) whether the false representations form a part of the contract or were a part of the proceedings which induced the contract. Whether it be a misrepresentation or a warranty, the element of fraud in it will justify an action for tort, although in some cases a suit for breach of contract might be equally allowable. Fraud in making a contract will completely vitiate it.
Definition. A duty exists to exercise care to avoid doing injury to another. There is required that amount of care, skill, and diligence “which circumstances justly demand,” and which a “reasonable, prudent, and careful" man may be expected to exercise. An action or failure to act with such care, if injury results to another, constitutes negligence. In the varied relations of life, and in the many positions in which one is placed, every one must exercise his rights in such fashion that others affected by such rights shall not be injured by his neglect to use due care. The continued possession of a right may be a sufficient exercise of the right to impose the duty. Duties in Possessing Property. The possession of property, for instance, imposes duties. One must so employ his property as not to injure others; he must keep his premises in repair sufficiently so that those invited or licensed to enter, may not be injured by defects. In general he need not use great care to protect trespassers or even those invited or licensed to enter certain parts, if they wander into other parts of the premises; he may properly exercise his rights with little or no relation to these people; yet, if there is a reasonable possibility that a man licensed to enter may stray in unexpected directions, some care is necessary as to pitfalls or the like, so that this man exercising due care on his part may not readily receive injury; even a trespasser may have a remedy if hurt by a spring-gun set by the owner; furthermore, on some premises trespassing is not unusual. Use of Highways. The right to use a highway or street for purposes of travel must be exercised with due care to others using it. In driving a horse and vehicle or an automobile through the streets, care, and sometimes great care, is necessary to avoid collisions or to avoid frightening horses or doing some injury otherwise; it is necessary to use the degree of care that prudent, careful, skilful men find necessary under the circumstances. Occupation of Highways. If a city or town official, or a contractor for public or private improvements, when acting with due authority, tears up the street, or digs a trench, or otherwise interferes with travel, he must protect it, perhaps by a railing or a barrier by day, certainly by suitable lighting by night, so that travelers exercising due care shall not be injured. A householder, or any abutter on a highway, must exercise similar care when he lawfully sets out ash barrels, or builds hatchways, or when he places any obstacles on the sidewalk. Others' Real Property. It has been said that a man has a right to dig in his own land; furthermore a man has a right to build a house on his own land; the rights are reasonably regarded as equal. The man who digs must not dig negligently, but must at least give his neighbor, the owner of the house, an opportunity to shore up and protect it; if the owner is negligent and does not shore it, the digger has the right to dig, and may even shore up his neighbor's house and charge the expense to the owner. Duty from Contract or Statute. The action which is negligently performed may grow out of a contract, or it may be imposed by statute, or it may follow from the general exercise of a man's rights as a citizen or member of the community and a user of its facilities. Bailment. Whenever, by arrangement, an owner puts his goods in the hands of another whom we call the “bailee,” and the owner is entitled to receive them again, negligence shall not be exercised by the bailee either in the use, or in the holding and care of the goods. How much care is due depends upon the nature of the case. 1. Are the goods held or used for the benefit of the bailee ? In such case considerable care must be taken. 2. Are the goods held for the benefit solely of the owner, and without payment for the service 2 Slight care only is necessary. 3. Are the goods held for mutual benefit? Ordinary care suffices. Duty from Bailee. At one time three classes of negligence were recognized, growing out of the conditions above described; gross, ordinary, and slight negligence; but the tendency is otherwise of late. Different degrees of care are necessary, it is true, but negligence is the result of lack of that care “which the circumstances demand,” and the degree of care which may be negligence in one of the above cases may not be in another. Duty to Bailee. It is further true that where an owner allows a bailee to use his wagon, for instance, the owner is negligent if the wagon is furnished in a seriously imperfect condition. The owner's obligation to a man who hires is greater than to a man who borrows; the borrower has no right to demand approximately perfect repair and safety before the owner consents to loan the wagon. It would be somewhat different if he rented it; especially if he were in the habit of renting it. In the case of common carriers, or warehousemen, in holding goods during repairs, and in many other ways, the above subject of bailments, as it is called, is of much importance and some difficulty, but further attention does not seem wise here. Professional Service. In the case of professional service, one must not be negligent. What amount of care is necessary for the lawyer, the doctor, the engineer, the contractor? It is well settled that either one must exercise that degree of precaution, vigilance, diligence, and skill which a reasonable, prudent, skilful man of his profession or occupation would exercise. Sometime later it may be necessary to use the skill which a skilful and properly educated man would use; but probably “skilful '' includes the effect of education even now. A lawyer does not guarantee to win his case; a doctor does not agree to effect a cure. Neither lawyer nor doctor can be, nor is, free from liability to error in some part of the work; nor is the engineer or contractor. A lawyer must understand the law; the doctor must have adequate knowledge of the practice of medicine; the engineer must understand the laws of mechanics and the behavior of materials; the contractor must understand labor and materials and processes necessary in his work. The care necessary “under the circumstances of the case " is the requisite. Probably the ordinary country doctor would not in general be justified in attempting an intricate surgical operation except in an emergency. An engineer whose practice had been mainly in surveying would not ordinarily be justified in designing a bridge of unusual size and importance. Proximate Cause. In whatever line of action or inaction it may occur, the negligence must be the proximate cause of the injury, and for this it is ordinarily enough that a chain of circumstances is set in motion which naturally results in the injury; yet if an intervening, independent accidental circumstance occurs without which no injury would have resulted, there can be no claim of negligence; nor is there liability for an accident if a reasonable, careful man could not have foreseen the unfortunate result.
Contributory Negligence. Nor under the Common Law can a man be held responsible, even if he has been negligent, if as an intervening cause the person injured has himself been negligent in a way which has contributed to the injury. This is the doctrine of “contributory negligence" which has been of much importance, especially where relations of employer and employed are concerned ; and a considerable amount of Statute Law has been enacted first and last touching contributory negligence.
Comparative Negligence. In some cases there has been an attempt by statute to discriminate as to the “ comparative negligence ” of two parties. If the party injured contributed in any material degree to the result, the Common Law excused the party whose negligence primarily caused the injury; the doctrine of comparative negligence is not generally adopted.
While, as has been stated, the tendency now is not to recognize “degrees of negligence" nevertheless the statutes of some States do distinguish between simple and“ gross negligence.
Essentials of Negligence. In order to establish negligence in law, there must be:
1. A legal duty.
4. A causal connection between the breach of duty and the injury, which makes the one responsible for the other.
Evidence. Evidence sufficient to satisfy a jury is necessary upon these points. An accident alone is not proof of negligence. It may be that the only practical means of establishing the duty is to show that the person injured was in the exercise of his rights, which it is the duty of others to respect. It is necessary to establish as facts, the acts which are claimed to constitute negligence, in such a way and in such sequence, as to satisfy reasonable men that the acts constituted negligence.
Burden of Proof. To establish negligence, the burden of proof is naturally upon the plaintiff, the one injured by the neglect. But what about contributory negligence? In some States it is sufficient that the facts presented by the plaintiff fail to show contributory negligence. In others, as in Massachusetts, it is required that the plaintiff shall establish definitely his freedom from contributory negligence. In the first case the burden of proof as to contributory negligence is in effect on the defendant; in the second case clearly on the plaintiff. In some trials the difference means the winning or losing of the case, and the rule is different in different States.
Examples. As a matter of evidence, in the case of an alleged defect in highway, sidewalk, machine, or structure, evidence of the condition of the highway or machine just before or just after the accident will be